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HomeMy WebLinkAbout91-036REVIEWED Qw 91-22171 c BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTE�-efl` ; �ccuwsf GREG An Ordinance Amending PL -20, the Deschutes County Comprehensive Plan, as Amended, to�- Respond to LCDC Continuance Order 91 -CONT -752 * ° and Declaring an Emergency. , ORDINANCE NO. 91-036 0107 7 0521 WHEREAS, on July 12, 1990 Deschutes County adopted by Ordinances 90-025, 90-028, 90-014, and 90-029 a surface mining package that: inventories mineral and aggregate resources; weighs and resolves conflicts identified at inventoried sites between mineral resources and other significant resources and land uses based upon economic, social, environmental, and energy (ESEE) consequences; and based upon the ESEE consequences zones or declines to zone individual sites for surface mining (hereinafter referred to as "surface mining package"); and WHEREAS, the County's surface mining package was submitted pursuant to ORS Chapter 197 to the State of Oregon Land Conservation and Development Commission (LCDC) for acknowledgment of compliance with Statewide Planning Goals; and WHEREAS, LCDC and the staff of the Department of Land Conservation and Development conducted a thorough review of the County's surface mining package and determined that additional consideration should be given to the County's decisions on site numbers 400 and 541, as numbered on the Deschutes County mineral and aggregate inventory; and WHEREAS, the Deschutes County Commission has held additional hearings on Sites 400 and 541, pursuant to notice as prescribed by ORS Chapter 215, to address the concerns set forth by LCDC; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY ORDAINS as follows: Section 1. AMENDMENT OF INVENTORY (Site 400). (A) The Board amends Ordinance 90-025 to delete from Exhibit G (Deschutes County Mineral and Aggregate Inventory) all reference to Site 400, to delete from Exhibit I (Maps of Inventoried Sites) the map describing Site 400 (set forth on page 101 of the surface mining package) and to add Site 400 to Exhibit F (Insignificant Sites). (B) The Board further amends Ordinance 90-025 to supplement the findings set forth in Section 36 with those set forth in the Findings and Decision concerning Site 400, attached hereto as Exhibit A and by this reference incorporated herein. 1 - ORDINANCE NO. 91-036 (7/31/91) 010'7 0522 Section 2. AMENDMENT OF ESEE FINDINGS (Site 400). The Board amends Ordinance 90-029 to delete the reference to Site 400 in Section 20(e), to delete the ESEE decision for Site 400 set forth in Appendix A on pages 981 - 997 of the County's surface mining package, and to delete the map for Site 400 set forth in Exhibit C of Ordinance 90-029 on page 1570 of the County's surface mining package. Section 3. AMENDMENT OF ESEE DECISION (Site 541). The Board amends Ordinance 90-029 to delete the ESEE decision for Site 541 set forth in Appendix A of that ordinance on pages 1438 - 1445 of the County's surface mining package and to replace it with the ESEE decision attached hereto as Exhibit B and by this reference incorporated herein. Section 4. FINDINGS. (A) The Board adopts as its findings the recitals set forth above. (B) With respect to Site 400, the Board adopts as its findings Exhibit A attached hereto and by this reference incorporated herein. (C) With respect to Site 541, the Board adopts as its findings, Findings 7 through 20 of Ordinance 90-029, incorporated herein by reference, and Exhibit B attached hereto and by this reference incorporated herein. Section 5. EMERGENCY. 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. Section 6. SEVERABILITY. It is the legislative intent of this ordinance that if any part of this Ordinance or any of the individual attachments hereto is held to be invalid or otherwise void, each an every other provision or attachment shall remain in force. DATED this /� day of July 1991. BOARD OFICOUNTY COMMISSIONERS OF DEH TES COUNTY, OREGON --TU aXnxuur j issio er AT ST: i N CY OP GEN, Commiss Recording S cretary K MAUDL N, Chairman 2 - ORDINANCE NO. 91-036 (7/31/91) 010'7 0523 Exhibit A MINING SITE NO. 400 PRELIMINARY FINDINGS Site Number 400 comprises approximately 40 acres, near the northeast edge of the Conestoga Hills subdivision about 10 miles southeast of Bend. The site occupies tax lot 4502 in Township 18 South, Range 13 East, W.M., Section 15. The site is owned by Eric Coats and is zoned EFU-40. Surrounding property is zoned RR -10 and EFU-40. This site was identified as containing aggregate resources in the Deschutes County Goal 5 Aggregate inventory adopted by the Board of Commissioners (Board) on December 6, 1988. Based upon the site's inclusion on that inventory, a hearing was held on August 16, 1989, to determine whether to zone this site under Statewide Planning Goal 5 to protect the aggregate resource. On October 17, 1989, the Board made a preliminary decision on this site. On July 12, 1990, the Board adopted the site-specific ESEE findings and decision, ratifying the preliminary decision to list the site on the County's inventory of aggregate sites but not to zone the site for mining. The Board's decision in part was based upon the apparent poor quality of the rock present at the site relative to the level of conflict with wildlife and nearby residences. The Board accepted testimony from opponents' expert geologist, Lewis E. Scott, that the quality of the rock was poor because of its source and because no subsurface testing had occurred (See Finding #36, Ord. No. 90-25, incorporated herein by reference). The Board's decision on the site was submitted to LCDC for goal compliance acknowledgement as part of the County's surface mining Goal 5 package. After extensive review by DLCD staff, LCDC directed that the county reconsider this site. LCDC determined that the Board had not adequately documented whether mitigation of conflicts with wildlife habitat and nearby residences had been satisfactorily considered when making its decision. In addition, LCDC SITE NO. 400 1 010'7 0524 determined that the county should consider whether the site was properly placed on the inventory in the first instance. on May 10, 1991, LCDC signed a continuance order directing the Board to reconsider its decision for Site No. 400 by July 31, 1991, either by addressing mitigation as a means to balance the ESEE consequences of conflicting nearby residences and wildlife habitat, or by removing the site from the county's inventory of aggregate resources. That continuance order directed that the county allow the property owner the opportunity to submit additional information on the quality and quantity of the resorce at the site. On June 19, 1991, the Board held a public hearing to reconsider its earlier decision and to comply with LCDC's continuance order. The Board had determined that it would hold a de novo review, given the fact that during previous hearings on the site there had been considerable confusion as to whether the site constituted an 80 -acre parcel immediately adjacent to the Conestoaga Hills subdivision or just the easterly 40 -acres of the 80 -acre parcel. For the reasons given below, the Board determines that this site should be removed from the county's inventory of aggregate sites and that the present zoning of the site shall be retained. HEARING ON REMAND Prior to the most recent hearing on this site, a staff report was prepared setting forth new information submitted to LCDC and the county since the Board's decision on July 12, 1990. The report, which was entered into the record at the hearing before the Board, identified three new items of information: 1. Objection to LCDC dated September 11, 1990, from Michael E. Farthing, attorney for Mr. Coats. 2. LCDC's Continuance Order and Staff Report dated May 10, 1991. 3. "Rock Quarry Evaluation" dated March 29, 1991, prepared by Century West Engineering for Mr. Coats. During the hearing process, eight residents of Conestoga Hills submitted to the county letters in opposition to rezoning the site for mining, which were entered into the record for this site. Four members of the public spoke in opposition to zoning the site for mining at the hearing. In addition, an Opposition Statement, including updated reports from a geologist, an acoustical engineer and a range management consultant, was presented to the Board by Martin Hansen, attorney for Conestoga Hills residents, and entered into the record. No one spoke in favor of rezoning the property to Surface Mining. SITE NO. 400 2 FINDINGS 0107 0525 1. This decision is governed by Statewide Planning Goal 5, its impementing rule, OAR 660-16-000, and the Deschutes County Year 2000 Comprehensive Plan, as amended, regarding surface mining goals and policies. 2. OAR 660-16-000(5)(a) allows the county to exclude a resource site on the final plan inventory of significant resources if available information regarding location, quantity or quality of the resource indicates the site is not important enough to be included on the inventory. 3. The Board incorporates by reference the general inventory findings set forth in Sections 23 through 30 of Ordinance 90-025. 4. The Board finds that the rock resource at this site is of questionable quality, based on the testimony by Lewis E. Scott, certified engineering geologist, submitted at the prior hearing (See finding 136 in Ordinance 90-025, Mineral and Aggregate Resource Inventory) and at this hearing. Although the Board has generally found the tests used by the Oregon State Highway Division to be an adequate measure of the quality of an aggregate deposit, the Board finds that such tests applied only to surface samples of deposits from the Newberry Crater basalt flows are not determinative of the quality of such deposits. 5. The Board finds that the geologic report prepared for Mr. Coats on March 29, 1991, by Century West Engineering, does not contradict Mr. Scott's opinion. The Century West report was prepared from observing surface outcrops on the site and a review of existing reports. No subsurface drilling or sampling, or testing of rock materials, occurred. The Board agrees with Century West's determinations that the report can only be considered to be a preliminary report and that prior to considering the site for surface mining, a full geologic report is required, to encompass detailed geologic mapping, subsurface drilling and sampling to assist in determining the depth and quantity of material, and laboratory testing to determine the quality of the resource. 6. The Board finds that Site No. 400 is not appropriate for inclusion on the inventory in the "lb" category under OAR 660-16-000(5)(b) because, while the evidence of resource quality and quantity may be considered inadequate due to lack of subsurface testing results, Mr. Coats has stated that he does not intend to provide subsurface testing information. 7. Due to the lack of any subsurface information from the SITE NO. 400 3 owner and the opinion of geologist Lewi 01co7t oq?e Board finds that the resource on Site No. 400 is not significant enough to warrant inclusion on the Goal 5 inventory. 8. The Board directs that Site No. 400 be removed from the county's inventory of mineral and aggregate resources and that the present zoning of the subject property, EFU-40, be retained. SITE NO. 400 4 SITE NO. 400 5 APPENDIX TO EXHIBIT A 0107 0527 1. Objection to LCDC dated September 11, 1990, from Michael E. Farthing, attorney for Mr. Coats. 2. LCDC's Continuance Order and staff report dated may 10, 1991. 3. "Rock Quarry Evaluation" dated March 29, 1991, prepared by Century West Engineering for Mr. Coats. 4. Memorandum from David Leslie to Board of County Commissioners dated June 7, 1991. 5. Letter dated June 15, 1991, from Robert and Sally Ann Marshall. 6. Letter dated June 10, 1991 from Mr. & Mrs. W.E. Morrison. 7. Letter dated June 10, 1991, from Willis N. Croeni. 8. Letter dated June 13, 1991 from Thomas H. & Connie P. Holmes. 9. Letter dated June 15, 1991, from Frank and Donna Lutzky. 10. Letter dated June 17, 1991 from Richard D. Mayer & Patsy J. Mayer. 11. Letter dated June 17, 1991 from James R. Lusby. 12. Letter received June 19, 1991 from Madonna & James Stanley. 13. Opposition Statement of Conestoga Hills Residents on Rehearing dated June 19, 1991, prepared by Martin Hansen, Attorney for Conestoga Hills. 14. Minutes from the Board of County Commissioners' Hearing for Site No. 400 held on June 19, 1991. SITE NO. 400 5 010'7 0528 Exhibit B ESEE Findings and Decision Site No. 541 PRELIMINARY FINDINGS Site Number 541 comprises approximately 10 acres within Tract B, a 129 -acre Open Space parcel of land in the Rim at Aspen Lakes subdivision, and is located along Squaw Creek, approximately 2 miles northeast of Sisters. The site is owned by KMB Enterprises and is currently zoned Floodplain (FP) and Landscape Management Combining (LM). Adjacent land is zoned RR -10, EFU-80 and F-3. This site was identified as containing aggregate resources in the Deschutes County Goal 5 Aggregate inventory adopted by the Board of Commissioners (Board) on December 6, 1988. Based upon the site's inclusion on that inventory, a hearing was held to determine whether to zone this site under Statewide Planning Goal 5 to protect the aggregate resource. On July 12, 1990, the Board adopted the ESEE findings and decision for Site No. 541, reaffirming the preliminary decision, made on October 11, 1989, after conducting a public hearing on August 8, 1989, to list the site on the County's inventory of aggregate sites but not to zone the site for mining. In part the Board based its decision on the adverse impacts on the riparian values associated with Squaw Creek which would result from mining at this site. The Board's decision on this site was submitted to LCDC for goal compliance acknowledgement as part of the County's surface mining Goal 5 package. LCDC determined that information regarding mitigation of impacts to wildlife resources, in the form of an open space management plan prepared by the owner, was not available to the county when the Board made its decision. On May 10, 1991, LCDC signed a continuance order directing the Board to reevaluate the ESEE analysis and decision not to zone this site for mining, by considering the open space management plan, by July 31, 1991. On June 19 and July 1, 1991, the Board held a public hearing to reconsider its earlier decision for this site and to comply with LCDC's continuance order. The Board determined that it should conduct a de novo review of the site, given the fact that since its last review, a new subdivision had been platted adjacent at the site. For the reasons given below, the Board determines that this site shall be kept on 1 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 the county's inventory of aggregate sites, that surface mining shall not be allowed and that the present FP and LM zoning of the site shall be retained. 0107 05409 APPLICABLE CRITERIA Criteria applicable to this decision are Statewide Planning Goal 5, its implementing rule, OAR 660-16-000, and the Deschutes County Year 2000 Comprehensive Plan, as amended, regarding surface mining goals and policies. HEARING AND EXHIBITS The record for this decision includes the record from the prior hearings and all evidence submitted during the hearing process on remand. Prior to the remand hearing on this site, a staff report was prepared on June 7, 1991 describing new information submitted to LCDC and the county since the Board made its decision on July 12, 1990. The report, entered into the record at the hearing before the Board, identified the following new items: 1. Objection to DLCD dated September 13, 1990, by Matt Cyrus of KMB Enterprises, with attachments: a. Letter dated February 23, 1990 to Keith Cyrus from the Oregon Department of Fish and Wildlife (ODFW). b. Letter dated August 2, 1990 to Hazel Hansen from ODFW. C. Open Space Management Plan dated May 2, 1990, by KMB Enterprises. 2. LCDC's Continuance Order and Staff Report dated May 10, 1991. 3. Letter dated May 20, 1991, from Matt Cyrus to David Leslie, planning staff. The public hearing held on June 19, 1991, was continued to July 1, 1991, in order for new information, a noise report submitted by the owner at the hearing, to be evaluated. A second staff report dated June 28, 1991, was completed, including an analysis of the noise study prepared by the owner's acoustical engineer and additional evaluation of the Open Space Management Plan. During the hearing process, a letter dated June 10, 1991, written by ODFW in response to a letter from the owner's attorney, was entered into the record and numerous individuals submitted testimony both orally and in writing. At the remand hearing, Commissioner Schlangen disclosed that she had an off-the-record contact with Norm Behrens of ODFW 2 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 0107 05000 after the June 19th hearing. Commissioner Schlangen indicated that the conversation with Mr. Behrens was intended to enable her to have a better understanding of the potential benefits to wildlife which might result from constructing ponds adjacent to Squaw Creek. No individual at the hearing challenged Commissioner Schlangen's ability to hear this matter due to this contact and an opportunity was given for the property owner to rebut the substance of Mr. Behren's communication with Commissioner Schlangen. A list of the contents of the record for the remand hearing is appended hereto as Appendix A. In addition to documents generated for this Goal 5 process, the file includes materials concerning applications for fill and removal permits for flood control projects at the site. ESEE FINDINGS AND CONCLUSIONS 1. Inventory. The County's Goal 5 mineral and aggregate inventory establishes that the site has 548,000 cubic yards of good quality aggregate. 2. Site Characteristics. Site No. 541 is adjacent to Squaw Creek, east of Sisters and west of Camp Polk Road. The site includes riparian meadow habitat near the creek and is within the stream's 11100 -year" flood plain. Its location and elevation along the creek create the potential for flood and drainage problems along the banks of the creek depending on time of year and water flow. A variety of wildlife, including bald eagles, golden eagles, herons, osprey, ducks, geese and deer, have been seen historically on the site and on nearby lands situated in the flood plain adjacent to Squaw Creek. The site has not been mined previously. The site currently is an open space parcel, platted as "Tract B" in the Rim at Aspen Lakes subdivision. This subdivision is a residential cluster development including 19 lots, a community water system and a road serving as access to some of the lots, all located on top of a high rimrock ledge overlooking the site. Two residences in the subdivision are nearing completion and will soon be occupied. These residences are within several hundred feet of proposed mining activities. Some residences on other lots within the subdivision, once constructed, will be located within 300 feet of the mining site. In the past, this site has been used for grazing and irrigated pasture. These uses are currently not occurring on the site. 3 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 3. Proposed Mining Operation. 0107 0531 The Board finds that the applicant proposes to excavate up to 150,000 cubic yards of aggregate, resulting in the creation of three ponds in the floodplain. The Board finds that the purpose of the proposed surface mining operation is two -fold; to excavate material for use on the roads in a subdivision being developed by the owner located just to the east of Camp Polk Road, and to create ponds as an amenity for the Rim at Aspen Lakes subdivision. The operation will include heavy equipment to excavate the ponds and to haul aggregate to another location outside the floodplain. The eastern edges of the ponds, as proposed, would be within 250 to 300 feet from residential lots above the rimrock; a newly constructed residence on lot 10 is approximately 300 feet from the edge of pond B. The owner proposes to site a crusher adjacent to Pond B, as indicated on the map included in the record. The Board finds that the crusher will be located 750 feet from the closest residence in the Rim at Aspen Lakes subdivision. The Board finds that the distance figures in this regard submitted by the applicant's noise expert were inaccurate. The Board finds from the statements of the owner that the utilization of a crusher is essential to the owner's plans to use aggregate on the roads on the subdivision being developed to the east of the Rim at Aspen Lakes subdivision. Excavated material would be removed from the site along a graded road in the floodplain to Camp Polk Road to the north of the ponds. The Board finds, based upon the testimony at the hearing from Walter Paul, that this transport route is within 100 feet of an existing residence. The Board finds that the owner has proposed, as an alternative, to locate the crusher southeast of the homesites in the subdivision, adjacent to Camp Polk Road. The Board finds that this alternative is not a viable option under the county's land use ordinances. The proposed alternative crushing site is located to the east of the southernmost lots in the Rim at Aspen Lakes subdivision and to the south of Camp Polk Road. This site cannot be considered to be a part of Site No. 541. Because the alternate crushing site has no resource, it cannot be zoned SM, which would allow crushing. Because the alternate crushing site is not within one of the zones in which crushing of minerals is otherwise allowed, crushing is not an allowed use on that site. 4 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 4. Conflicts analysis. A. Goal 5 Conflicts 0107 0532 1) Resources a) Fish and Wildlife. The resource element of the comprehensive plan lists Squaw Creek as having rainbow trout and brook trout. The resource element of the comprehensive plan also lists the site as having sensitive reparian habitat. Under the county's zoning ordinance, such areas are treated with a wildlife combining zone overlay and given special wildlife consideration. The Flood Plain zoning, which has as one of its purposes the protection of riparian values, is also indicative of important wildlife values. The Board finds that these designations constitute a legislative policy judgment about the importance of the site for fish and wildlife. The ODFW identified this site in a letter to Deschutes County dated August 10, 1989, as a site "recommended for winter range and special wildlife consideration." ODFW has subsequently clarified that this site is not in the deer winter range. The Board finds from testimony in the ESEE hearings that golden and bald eagles, osprey, ducks, geese, deer and other wildlife have been observed on or near the site. b) Open space and scenic values. The County Comprehensive Plan calls for the inclusion of areas along Squaw Creek into the Landscape Management (LM) combining zone, which would protect scenic values 200 feet back from the river. The inventoried deposit in this case is within the LM zone on the flood plain. C) Riparian habitat and wetland values. The resource element of the County Comprehensive Plan identifies this area along Squaw Creek as having sensitive riparian habitat. In addition, the floodplain zoning of the site is indicative of the importance of this area for riparian values. The ODFW has identified areas of the site which they consider to contain prime riparian vegetation, including willow and alder stands. Portions of the site are sparsely vegetated, partially due to past grazing on the site, particularly along the creek banks. d) Hydrologic Values. The resource element of the comprehensive plan lists the Squaw Creek floodplain as an area subject to flash flooding. Testimony at the remand hearing confirmed and the Board finds 5 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 010'7 0533 that the area has flooded his orically approximately once in every seven years on average. Testimony also established and the Board finds that the water table in the flood plain is within four feet of the surface and is hydraulically connected to the surface water in Squaw Creek. The Board finds that the comprehensive plan designation and the FP zoning stands as policy judgment to the importance of the floodplain for the recharge of ground and surface waters and flood absorption. 2) Conflicts Based upon the staff analysis of surface mining impacts on natural resources, the Board finds the conflicts and impacts of and on surface mining at this site to be as follows: a) Open space and scenic values are impacted by the removal of vegetation, excavation on the floodplain, storage of excavated materials, the presence of machinery on the site, the building of infrastructure, such as access roads, fences and processing facilities, noise emanating from mining activities and fugitive dust. b) Impacts on wildlife would be primarily increased noise and human presence and further loss of some forage. The effect would generally be to cause deer to avoid such areas. c) Riparian, wetland, and water quality resources could be adversely affected by excavation on the floodplain. Removal of aggregate, which provides a substrate for vegetation to grow on, to construct the ponds, and the storage and processing of materials will occupy space that would otherwise provide for habitat and forage for wildlife in the area. The removal of water from Squaw Creek to circulate fresh water through the ponds could exacerbate problems with water quality and temperature in the creek during periods of the year with low water flow. The elevation of water temperatures in the ponds may adversely affect the water quality in the creek once these waters reenter the stream. In addition, lining of the ponds could interfere with the floodplain's flood absorption capabilities. d) The presence of other protected resources such as riparian habitat, open space, scenic vistas and 6 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 010'7 0534 water quality impact on the aggregate resource due to their locality. These resources are present in the same location where mining would occur. Retaining these resources in their entirety in their present location would not allow for surface mining to occur. The Board finds that, accounting for the above -listed impacts, the above listed resources are conflicting resources in that full protection of those resources would preclude zoning for surface mining or severely restrict surface mining at the site. B. Land Use Conflicts. Land use in the immediate area now includes a 19 -lot residential subdivision above the rimrock overlooking the site. The county has approved building permits for dwellings on several of these lots and construction is pending on many of the others. The farthest of these lots is approximately 1600 feet south of the site. Therefore, each of these lots is within the one-half mile impact area determined to exist around all properties where surface mining is permitted by the county. If surface mining were now approved at the site, the owners of the 17 remaining lots would need to comply with the county's standards for development in a Surface Mining Impact Area (SMIA) combining zone. The owner of Site No. 541 would be required to meet strict DEQ noise and air quality standards because of the proximity of the houses. Conflicts would include impacts of noise (including heavy equipment, truck traffic and crushing) on adjacent residences and the impact on aesthetic values due to the excavation work. The Board finds that, accounting for the above -listed impacts, all possible uses in the zone are conflicting uses in that full protection of those uses would preclude zoning for surface mining or severely restrict surface mining at the site. ESEE ANALYSIS Protection of Aggregate Resource 5. Economic Consequences. The Board finds that the economic consequences of protecting the aggregate in conflict with other natural resources is difficult to measure, given that fish and wildlife habitat and scenic views do not have any economic values attached to them. Economic consequences would tend to be of a secondary 7 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 nature, such as a reduction in tourists who would come to the site to appreciate the scenic and wildlife values. The site is not likely to attract visitors, given that it is bounded by private property. 0107 05 5 The Board finds that the economic consequences of protecting the aggregate resource over conflicting adjacent land uses relate primarily to the effect on adjacent property values. The Board finds that while the impacts of surface mining may in individual cases have a short-term impact on property values of surrounding properties, trend analysis from the tax assessor's records of specific parcels either adjacent to or within one-half mile of both existing and potential surface mines indicates that there are no drastic fluctuations in these property values. This same analysis shows that there has been no appreciable decline in sales of these or other similar types of property. In this particular case, sales of lots in the Rim at Aspen Lakes subdivision have occurred despite the plans of the property owner to proceed with a surface mine. A more particular economic consequence would be the limitations placed upon owners of homes in the Rim at Aspen Lakes subdivision overlooking the site. The county's Surface Mining Impact Area (SMIA) regulations place limitations on the location of homes within the SMIA area. The Board finds that all the homes in the Rim at Aspen lakes subdivision are within the SMIA zone. Based upon the noise calculations referred to below in the discussion on social consequences, the Board finds that with respect to the homes sited closest to the proposed mining operation, siting of the homes would cause the mining operation to violate DEQ noise standards and would consequently be prohibited or subject to costly noise mitigation measures. 6. Social Consequences. The Board finds that the social consequences of protecting the mineral resource over the other natural resources would be minimal. Surface mining would have negative impacts on riparian fish and wildlife habitat, introduce a visual disturbance into the landscape, and possibly impact ground water resources. Any reduction in wildlife habitat values would be offset to some degree by the ponds to be established. Accordingly, the social consequences of possible reduced wildlife viewing opportunities would be minimal, at most. On the other hand, preserving this site for the production of mineral and aggregate resources would have a significant impact on the quality of life associated with the surrounding residential land uses. The Board finds that the liveability of the area could be negatively impacted by the noise (associated with 8 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 0107 0536 excavation, crushing, and transportation of the resource), dust and visual scarring produced by the surface mining operation. Although the project will end up with ponds that may be aesthetically pleasing, such ponds may or may not be more pleasing than the already existing riparian meadow. With respect to the noise produced by the surface mining operations at the site, the Board finds that the DEQ noise levels cannot be met by the applicant, particularly with respect to those homes that are closest to the site where mining would occur. The Board bases its finding in this regard on the noise analysis and noise attenuation calculations set forth in the staff reports. Although the applicant's noise engineer concluded that noise levels could be kept within statutory limits, the Board finds that this opinion was arrived at without the benefit of a site visit, did not consider the proximity of the mining activity to the closest homesites on the rim, did not include an evaluation of the cumulative noise generated by more than one noise source operating at the same time, and did not analyze the impacts from the operation on existing residences along the haul route which trucks and other equipment would need to use to leave and enter the floodplain area from Camp Polk Road. The Board therefore finds that the owner's noise report is not an accurate estimate of the level of noise which will occur at the site or a reliable assessment of the impact from this noise on the adjacent residential subdivision. Furthermore, the Board finds that mitigation of noise at this site with noise barriers such as earthen berms is not feasible due to topographic relief of the rimrock above the site, and that some measures apparently contemplated by the owner's engineer, such as construction of a noise -reducing structure enclosing the entire processing area were never evaluated for cost by the owner and are economically unrealistic. 7. Environmental Consequences. The Board finds that allowing surface mining activities would have adverse environmental consequences on riparian fish and wildlife habitat and scenery along the creek. Surface mining activities would reduce the available forage at the site, which would cause increased competition among wildlife for the remaining forage. Wildlife would avoid the area to find other food sources, thus adding more competition in other areas for these resources. Excavation would take place in the floodplain. There would be no possibility of moving the operations outside of the floodplain, given the owner's plans, in order to protect possible fish habitat and other riparian 9 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 0107 0537 resources. The Open Space Management Plan does not address the effects on the wildlife and scenic values during mining at the site. ODFW has indicated that the plan should provide wildlife benefits as it relates to the presence of ponds in an open space area but does not specifically endorse the manner in which the ponds are proposed to be created by the owner. In addition, the Board finds from testimony at the hearing that numerous farm ponds exist in the area already and that consequently any positive value of the ponds for wildlife would be minimal. The Open Space Management plan sets forth a concept for management of lands platted as Open Space. The plan as written is a "proposal" by the owners for the management of Open Space Tracts A and B. The aggregate resource is located within a portion of Tract B, occupying part of the floodplain of Squaw Creek on the property. The plan was prepared by the owners with review and advice obtained from ODFW by the owner at the county's request. The county required the plan in order for the applicant to meet the requirements of the county's zoning regulations regarding open space in a cluster subdivision, in return for which the owner received a higher density of lots above the rimrock than the zoning of the property would otherwise allow. The plan has never been formally accepted by the county as a management plan to deal with surface mining impacts at this proposed surface mining site. Although the plan describes an end product - the creation of three ponds which may one day enhance wildlife and scenic and open space resources - there is no analysis in the plan of the potential adverse impacts on these resource values which may occur during the creation of this habitat via surface mining activity, including excavation, processing and hauling of crushed materials in trucks to another location. Once constructed, the ponds could be transformed back to a level floodplain after a subsequent flood event. The plan contains no evaluation of the dynamic, transitory nature of this floodplain environment or the impacts a flood might have on the site, either during or after construction of the ponds. The plan does not adequately address the potential impact from the excavation and filling of ponds in the floodplain on the water table, and ultimately the fishery and wildlife resources associated with Squaw Creek. Testimony at the remand hearing indicated that a difference of opinion still exists as to whether the ponds should be lined with clay so as not to interact with the water table or should be left unlined and be hydraulically connected to the creek. Lining of the 10 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 ponds could interfere with the flood absorption values of the flood plain. 0107 0538 The Board finds that the Open Space Management Plan does not address these potentially adverse impacts and does not, therefore, provide for any mitigation measures to avoid or lessen the impacts from surface mining on the conflicting resources on the site. With respect to environmental consequences of protecting adjacent land uses over the aggregate resource, the Board finds that the consequences of protecting the site for mining would be substantially the same as those covered under social consequences above. 8. Energy Consequences. The Board finds that the energy consequences of protecting the mineral resource over the other natural resources would be to increase the energy consumption at the site due to fuel expenditures needed to run the heavy equipment and processing equipment as well as the fuel expended in transportation of the product to its end use. Such energy use would be bound to occur in any event. Aggregate is a resource that is needed in the County and failure to protect the mineral resource at this site would only mean that such energy use would occur elsewhere. However, the Board also finds that that the resource at this site will not be fully excavated, since the proposed mining operation is aimed more at a development plan for the property than providing aggregate resources to the community. The owner submitted a conditional use permit application in 1990, requesting approval to excavate up to 150,000 yards of aggregate from the floodplain at this site. (The owner requested in September, 1990, that that application not be sent to a hearing pending resolution of the zoning of this site through the acknowledgement process.) The Board finds that the owner proposes to excavate no more than 28 percent of the known volume of aggregate at this site. Under these facts, it would be more energy efficient to excavate other sites where the full resource would be mined. Given the limited amount of material at the site and its distribution along a creek bed, it would most likely be more energy efficient to mine other sites. With respect to protection of the aggregate resource over conflicting adjacent land uses, the analysis would be the same as that for conflicting resources. Protection of Conflicting Resources and Land Uses 9. Economic Consequences. Complete protection of riparian 11 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 0107 0539 habitat and fish and wildlife resources and scenic qualities would preclude or limit mining at the site. The Board finds that, as reflected in the goals and policies statement of the County comprehensive plan, the County consumes 2 million cubic yards of aggregate materials each year. Under the laws of supply and demand, failure to protect sufficient amount of aggregate for the 20 -year planning cycle will result in an increased cost in aggregate resources. Increases in aggregate costs would in turn result in increased construction costs. To the extent that aggregate would need to hauled in from outside the area, the cost of aggregate would be increased by hauling costs, which the Board finds to be at a rate of .22 per ton mile. The Board finds there to be a total of 73,538,000 cubic yards of sand, gravel and rock in the County, accounting for the inventoried amount of sand, gravel and rock and the amount of those materials located at sites within the urban growth boundary. The Board finds that virtually all sites have either resource or land use conflicts with surface mining. Consequently, if more than 46% of the aggregate sites were to be eliminated due to resource conflicts, the County would not have preserved sufficient aggregate to meet its needs. The Board finds that development of this particular site is not aimed at meeting community needs for aggregate so much as it is aimed at furthering the owner's development program for his property. No more than 10 percent of the resource is required to provide sufficient material for road construction at the owner's adjacent development. Accordingly, it appears that at most 100,000 cubic yards of aggregate would be made available to the public. With respect to the economic consequences of protecting conflicting land uses over the aggregate resource, the Board finds that the consequences would be the same as set forth above concerning protection of other natural resources over the aggregate resource. 10. Social Consequences. Preserving the natural resources at aggregate sites could have negative effects on the general welfare of the County if insufficient amounts of aggregate are preserved. Regardless of the amount of supply readily available, there will always be a demand for aggregate resources. The County's roads would still need improvement and maintenance. A deterioration of the County's roads and streets would negatively impact the liveability and quality of life in Deschutes County. The Board also recognizes the social consequences of increased building costs that can result from a shortage of readily available aggregate. However, given the small quantity of material to be excavated at this site, 12 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 it is unlikely that failure to allow mining at the site would have any impact in this respect. 0`107 0540 With respect to the social consequences of protecting conflicting land uses over the aggregate resource, the Board finds that the consequences would be the same as set forth above concerning protection of other natural resources over the aggregate resource. 11. Environmental Consequences. Protection of the other natural resources over the aggregate resource would preclude or limit mining at the site. The noise, traffic, human presence and disruption of topography and habitat associated with surface mining is inconsistent with the protection of those resources. Therefore, protection of the natural resources by precluding mining would have positive environmental consequences. As with the mineral and aggregate resource, riparian habitat and fish and wildlife resources are limited by locational factors. The Open Space Management Plan does not evaluate the long term effects on Squaw Creek from developing the ponds in the floodplain or the impacts from mining activity on riparian habitat, fish and wildlife resources, or water quality during mining operations and construction of the ponds. Although there is evidence from ODFW to suggest that the ponds created by the surface mining may offer wildlife benefits, the Board finds that any such benefits must be discounted by the numerous farm ponds already existing in the area. With respect to the environmental consequences of protecting adjacent conflicting land use over the aggregate resource, the Board finds that the consequences on environmental value would be minimal. The site is designated as open space on the Rim at Aspen Lakes plat; consequently, no land uses can be established on the site that would interfere with fish and wildlife and other environmental values. The adjacent homesites, being located on the rim of Squaw Creek Canyon, are separated from the floodplain by topography; therefore protection of those uses should not have an adverse effect on the values of the floodplain. 12. Energy Consequences. The Board finds that protection of natural resource values and conflicting land uses at the site would not have negative energy consequences. The site has a small amount of aggregate thinly distributed. There are other sites with much larger and more concentrated deposits that can help meet the County's needs. 13. Value of the Amfregate Resource Relative to the Conflicting Natural Resources and Land Uses. Based upon 13 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 the above analysis of the ESEE consequences, the Board finds that the conflicting natural resources and land use should be fully protected at the expense of the aggregate resource. 01017 The County bases this decision on the following: (a) Although this site has a good-sized aggregate deposit on it and the supply of aggregate is limited in the County, development of this site will not offer a significant contribution to satisfy the community's need for aggregate. Given that the mining would be driven by the needs of the owner's development and not the need in the marketplace for aggregate, the site is relatively insignificant compared to the value of the conflicting resources. (b) By its decision on other sites, the County has preserved a total of 45,197,000 cubic yards of aggregate material, not including those amounts that are located inside the Bend urban growth boundary. These amounts are sufficient to meet the County's needs over the planning period. Within a five -mile radius of this site, the Board has in those decisions preserved at least 1.4 million cubic yards of aggregate materials. (c) The Deschutes County Comprehensive Plan, as amended by the Deschutes County/City of Bend River Study, gives great weight to protection of natural values in riparian areas such as this one. (d) The environmental impacts from surface mining on fish and wildlife, riparian areas, and water quality at the site were not taken into account in the Open Space Management Plan, and the plan does not address whether or not these impacts can be mitigated. (e) In the absence of a meaningful mitigation plan submitted by the owner of the site, and in view of the evidence in the record of the high level of impact mining this site would have on fish and wildlife habitat, open space and scenic values, wetlands and groundwater, the Board finds that the impacts cannot be adequately mitigated. (f) Adjacent residential uses are important in that they represent a committment to development and occupation of individual parcels of private property. Such committment is accompanied by important economic, quality of life and health and safety expectations of those who occupy and patronizes those use. The importance of these uses relative to the proposed surface mine is heightend 14 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 0541 07 054E2 by the fact that the owner of the surface mine is the same person who developed the adjacent Rim at Aspen Lakes subdivision. Having proceeded to plat those lots while facing uncertainty as to the fate of his proposal to mine the site, the resulting conflicts must be resolved in favor of the existing residential uses. Accordingly, the Board determines that pursuant to OAR 660-16-010(1)(2) it will allow the conflicting natural resources and land uses fully. PROGRAM TO MEET THE GOAL 14. The Board finds that in order to protect the conflicting fish, wildlife and water quality resources and the conflicting residential uses, the site shall not be zoned for surface mining and that the present zoning for the site, FP and LM shall be retained. 15 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541 • APPENDIX TO EXHIBIT B 0 1. 07 0543 1. Objection to LCDC dated September 13, 1990, from KMB Enterprises. 2. LCDC's Continuance Order 91 -CONT -752 and staff report dated May 10, 1991. 3. Memorandum dated June 7, 1991, to the Board of Commissioners. 4. Noise findings dated June 19, 1991, from Daly, Standlee & Associates. 5. Memorandum dated June 28, 1991, to the Board of Commissioners. 6. Letter dated June 5, 1991, from Max Merrill, attorney for KMB Enterprises to Norm Behrens, ODFW. 7. Letter dated June 10, 1991, from Norm Behrens to County Planning. 8. Letter dated June 17, 1991, from Chester & Virginia Bradley. 9. Statement from the Rural Preservation Committee received June 19, 1991. 10. Letter dated June 6, 1991, from Frank R. Baldwin. 11. Letter dated June 18, 1991, from Dick & Sharon Mooney. 11. Letter dated June 14, 1991, from Richard C. Owens. 12. Board minutes from the June 19, 1991, public hearing. 13. Board minutes from the July 1, 1991, public hearing. 14. Photographs of Squaw Creek submitted at the public hearing 15. Letter dated June 18, 1991, from Bob Main, Water Resources Department to KMB Enterprises. 16. Article dated June 19, 1991, from the Nugget newspaper. 17. Map of the Rim at Aspen Lakes subdivision. 16 - REVISED ESEE FINDINGS AND DECISION - SITE NO. 541