BOARD OF COMMISSIONERS'
April 30, 2003
1:30 Ė 4:00 p.m.
Harris Hall Main Floor
Commissioner Peter Sorenson presided with Commissioners Bill Dwyer, Bobby Green, Sr., Tom Lininger and Anna Morrison present. Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
15. PUBLIC HEARINGS
a. SECOND READING AND PUBLIC HEARING/Ordinance PA 1188/In the Matter of Amending the Lane County Rural Comprehensive Plan to Revise the "Significant Mineral and Aggregate Resources Inventory", Redesignate From "Forest" to "Natural Resource: Mineral", Rezone From "F-1/Non-Impacted Forest Lands" to "QM/Quarry And Mine Operations" and Allow Mining For 40 Acres of Land Pursuant to Lane Code 16.400 And 16.252 and the Goal 5 Oregon Administrative Rules (OAR 660-023); and Adopting Savings and Severability Clauses (File PA 99-5144; B.J. Equipment Company) (NBA & PM 3/19/03).
Sorenson explained the purpose of the hearing is to consider and provide an opportunity for all parties to provide testimony and submit evidence to the Board of Commissioners.
Sorenson asked the Board if they had any ex-parte contacts and to disclose them.
Lininger stated he had two contacts. He noted two years ago he and Vicki Curry had a discussion when they were serving on a school board committee. He said it was clear to him that she was an opponent of this proposal. He said he got his hair cut next to the attorney for the applicant and they had a brief discussion without any reference to the merit of the proposal.
Dwyer had no ex-parte contacts.
Green had no contacts.
Morrison had no contacts. She noted she is the Boardís representative on the Planning Commission and when this was going through the Planning Commission process, she attended the meetings and listened to the tapes. She added she had visited the site.
Lininger had also been to the site of the quarry.
Sorenson received a phone call two years ago. He recalled asking those people to call Land Management for an update on where the application stood.
Thom Lanfear, Land Management, explained the application is a request to change the zoning on a piece of property from F-1 non-impacted forest land to quarry mining with an associated change to the plan designation from forest to natural resource mineral. He noted the process is to review whether this site is a significant mineral and aggregate resource and adding it to the Lane County inventory. He stated the criteria used are found in Lane Code 16.400 and 16.252 and the Administrative Rules for Goal 5, in OAR 660-023.
Lanfear stated the statute as required by ORS 197.763, requires they make an announcement to the people in attendance that testimony, arguments and evidence must be directed toward the criteria or in the plan or land use regulation that the person believes to apply to the decision. He commented failure to raise an issue accompanied by statements or evidence sufficient to afford the decision maker and the parties opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue.
Lanfear noted that failure by the applicant to raise constitutional or other issues relating to proposed conditions of approval with sufficient specificity to allow the local government to respond to the issues precludes an action for damages in circuit court.
Lanfear explained the site of the gravel pit is a few miles east of the Creswell urban growth boundary, south of Bear Creek Road. He noted access to the site is from Cloverdale onto Bear Creek Road and south onto Cedarcroft Road onto a panhandle of the property and up to the quarry site.
Lanfear stated a packet was provided to the Board for the first reading and he submitted a supplemental memo to the Board yesterday that contained all the materials submitted into the record since the first reading. He noted there was one omission in the staff report, in that the school district did respond in a referral (Exhibit 57) and they are on record as being opposed to this project.
With regard to Goal 5, Lanfear noted there is a chart in the packet (opposite Page 5) which shows the steps that are followed to review the application. He noted that Step 1 requires the decision maker to determine if the information submitted with the application is adequate for review and if it is adequate, they proceed to Step 2 to determine if the resource site is significant. He stated "significant" means that there is suitable quantity and quality of material to meet the state requirements for addition onto the inventory. He said if the site were significant, they would proceed to Step 3, which would be a review of the conflicts associated with the mining. He noted those conflicts are listed in the packet on Page 7. He added the review of conflicts is limited by the rule to an impact area beginning at 1500 feet from the mining area itself and that distance could be expanded if factual information is submitted, demonstrating that the conflicts go beyond the 1500 feet. He stated in this particular case, the applicant has identified a noise conflict that would extend out to 2100 feet from the mining area. He said the conflicts that are reviewed fall into five categories: 1) conflicts due to noise, dust or other discharges; 2) conflicts with local roads; 3) safety conflicts with existing airports; 4) conflicts with other Goal 5 resource sites; 5) conflicts with agricultural practices and the conflict that doesnít apply in Lane County are conflicts for any ordinances that the County might have adopted that superseded DOGAMIís ordinances. He commented the important part regarding the review of conflicts appears to be that the rule limits the review of conflicts to the mining area itself and the mining area is defined as the area where the extraction processing occurs, being limited to the 40 acre site itself. He noted there was testimony regarding conflicts with noise and dust on the public roads and that appears to be outside the scope of the conflict provision in the rule. He said the Planning Commission found that there were conflicts with the local roads that needed to be addressed.
Lininger asked to what extent they could consider traffic and road issues off of the mining site. He thought their consideration was limited to traffic as a volume and safety matters and impacts on the road.
Lanfear responded on Page 9 of the packet, the actual criterion for review of potential conflicts to local roads lists out the elements they would look at including site distances, road capacity, cross section elements, alignment and similar items in the transportation plan. He added the criterion that contains the provision for conflicts due to noise, dust and other discharges does not include the roads.
Vorhes commented that Goal 12 involves the Transportation Planning Rule. He noted under that circumstance, some of the road considerations might be applicable.
Lanfear stated the Board determines that conflicts have been minimized if it meets an applicable federal, state or local standard that applies to a conflict by brining the proposal into conformance with that standard. He added if all conflicts are found to be minimized, then the Board would skip to Step 5 and look to conflicts from other uses onto the mining site. He said if the Board finds that there are conflicts that are not minimized, then the Board would proceed to an ESEE analysis to determine whether they should allow the mining based on those conflicts. He stated if the Board finds that all conflicts are minimized and there are no conflicts from other sites to the mining program, then the Board needs to develop a program to allow the mining in Lane Countyís case, including changing the zoning and plan designation to protected resource. He noted there was a series of conditions that were created at the Planning Commission that were designed to minimize conflicts that were found there. There are some conditions in the list that were suggested by the applicant as voluntary measures to reduce some conflicts and there is a conflict condition relating to road requirements that the Board will need to discuss. He said the Planning Commission did not decide what levels of improvements were required to the road in order to minimize the conflict. He noted they found there was a conflict but it could be minimized by suitable road improvements.
Commissioner Sorenson opened up the Public Hearing.
Jim Spickerman, 975 Oak St., Eugene, stated he represented the applicant. He submitted a brief written statement to the Board dated April 28. He highlighted some of the exhibits in the record. He urged the Board to take a site view of the quarry. He noted that part of the record is a large aerial photo. He commented that no one likes aggregate operations but it is a natural resource that needs to be made available and no one wants it near their property. He said they found the use of the quarry does not conflict with the other uses in the area. He commented Lanfear stated the Planning Commission found that there was a conflict with the roads. He thought the conflict was whether or not one of the elements that must be addressed under the Goal 5 Rule is wear and tear of impact on road structure.
Spickerman requested leaving the record open. With regard to the delay in the application, he said it was not something they wanted or caused. He said the issues raised concerning certain ordinances are relative to a private haul. He added that a proposed plan amendment is before them, not an application to partition property and approval of a road. He said they were governed by the land use regulations that were in effect at the time they filed the application and it was filed in March of 1998. He commented there was no mention with the materials of the transportation division of any such requirement of acceptance of the traffic impact analysis that was submitted. He added there was a sign posted at one point about the 50-mile-per-hour speed limit on Bear Creek Road.
Spickerman noted there was mention made of conditions the Planning Commission posed that the applicant voluntarily proposed. He said under the Goal 5 Rule, those could not be imposed against the applicant, but he was willing to have those conditions imposed. He stated there is a disagreement as to the ability of the County to impose the road improvement fees. He said the land is presently zoned for logging and timber harvesting that could occur even after the zone change designation takes place. He added logging trucks are subject to the same weight limitations as the gravel trucks. He commented the rule says the application has to comply with clear and objective standards that are found in the local transportation plan and ordinances. He stated even though they prepared a traffic impact analysis based on those standards, they had never been adopted by the County and are not applicable. He added that pertained to the wear and tear on roads. He commented even though ASHTOS standards could be applied, there were none pertaining to wear and tear of the roads. He said if they could impose a fee for wear and tear it should be one that has a relationship to the wear and tear for cost. He said they are charged with improving the full width of the road because of the wear they cause by loaded trucks. He said the costs have to be proportional to the impact they would have. He added the fee sought to be imposed is based upon running 40 trucks per day, the maximum allowed for every working day for 20 years. He said not one sand and gravel operation operates in that matter. He said if there is a fee to be proposed, it is not proportional to the impact cost. He commented if this land use application is approved, they would be the primary users of Cedarcroft Road and have offered to pave the public portion of that road.
With regard to the report of the acoustical engineer of February 12, 1999, Lininger said it appeared that they might characterize the drilling sound as extending further than the noise from the other operations. He asked if they extended the area to 2300 feet, if it takes in a residence. He asked if that meant there was a different set of calculations.
Spickerman responded he didnít read the paragraph that way but he would have that clarified.
Sorenson asked if there is a requirement that the Board approve a rezoning, to make it an affirmative finding that this rezoning is in the publicís interest.
Spickerman stated the Planning Commission made the positive finding. He discussed with Lanfear after the Eugene Sand and Gravel decision, that even though they addressed the local criteria, he had taken the position that they didnít have to. He said they addressed them and staff and the Planning Commission agreed to go forward with that.
Sorenson asked what the relationship was with the Lane Code requirement that rezoning shall not be contrary to the public interest and the overall state objective of providing a reasonable way to present evidence.
Spickerman stated it could undermine what the Goal 5 Rule was intended to do.
Chris Jeremiah, B.J. Equipment Company, stated he is one of the owners of the company. He said they started this application when he got out of college in 1997. He noted their primary business is drilling and blasting. He added they are the largest drilling and blasting contractor in the northwest. He said they also have a crushing company. He stated their objective is to have a small quarry when their business slows down and their people arenít working. He noted they work in about 300 quarries a year. He said when they sought a site to put a new quarry in, they wanted to minimize the impact and find the best site. He commented that no one wants a quarry in their backyard. He explained this was a rural site and he thinks they could meet all the criteria in Goal 5. He noted the closest dwelling was 2300 feet to the south and outside the DEQ limit of 2100 feet. He added it is also placed well behind a hill that would reduce the quarry noise by an additional 15 decibels.
Lininger said his concerns about traffic safety have to do with the dimension of the trucks. He asked what type of trucks they would be limiting the applicant to use at the site.
Jeremiah responded all the trucks they will be using would be legal on the highway.
Sorenson asked what the overall traffic would be like on the road.
Jeremiah said the traffic would not be congested because it is not an ongoing quarry where trucks are going in and out. He added it is a remote site. He noted the economy had taken a downturn, so he wasnít sure if they would move many trucks.
Green asked if the timeliness of the application had been dealt with.
Jeremiah responded that they had turned in their findings and needed to do revisions. He noted they had been working with County Counsel to mitigate the road issue before they presented this to the Board.
Eben Fodor, 394 E. 32nd Avenue, represented neighbors who were impacted by the gravel quarry. He noted the applicant had taken four and a half years to develop the record on this case and he had been working on this matter for 30 days. He discussed the 18 issues that they are raising. (Copy in file.) He said the main focus is the impact area and the determination of what that impact area is. He thought this case was unique and precedent setting since it involves a haul road that runs through rural residential properties.
Fodor mentioned this application was every rural homeownerís worst nightmare. He added if this application is approved as it now stands with the current set of findings, the neighbors are worried about what could happen in their neighborhood. He noted as this application has been presented, gravel trucks could destroy the rural quality of life for almost anyone living near a rural road in Oregon. He said under the interpretation of Goal 5 presented by the applicant, the noise, dust, fumes and hazards generated by a steady stream of gravel trucks are irrelevant to the land use decision. He explained that 80 gravel tracks per day is approximately one gravel truck going by every six to seven minutes on average. He said if this is approved, the quality of life will be destroyed and property values will be reduced. He said if this gravel quarry were approved, it would constitute a regulatory taking for those residents living along or near the proposed haul road. He said they would incur substantial losses in both property values and the use and enjoyment of their rural properties. He added these impacts are already documented in the record from previous hearings held four years ago.
Fodor said the Board should deny the application because of the non-responsiveness of the application. He said such agreements are in force for a period of one year unless stipulated for a lesser period of time. He said the wording in Lane Manual limits the application to one year. He commented the application had gone on for four and a half years and over three years since the Planning Commission met and made their decision to instruct the applicant to provide findings. He said the Board could insist this be resubmitted as a new application and they could do this under proper circumstances. He stated the problem with allowing an application to never expire is the cost to the County. He thought they had also violated Goal 1. He commented the application should have expired on April 7, 2000.
Dwyer commented that the 180-day provision is a way to require the government to respond to a request for a plan amendment in a timely fashion. He said it did not apply to these post application plan amendments. He didnít think it applied if the government continues to ask for information and there is a dialogue between the government and the applicant.
Fodor commented the Creswell Chronicle reporter found that there was no progress being made because the applicant was refusing to comply with the Countyís study stating they need to mitigate road impact. Fodor added if there is a conflict with roads, then the conflict has to be minimized by the applicant and if the applicant does not minimize it, the application should be denied. He noted in 1999, Lloyd Holtcamp from Lane County stated in his memo (copy in file) that this application should be denied if the applicant doesnít agree to these terms. Fodor added the applicant had not agreed to the terms and three years has gone by. He commented the applicant is refusing to pay the costs that the taxpayers will have to pay.
Fodor noted in this matter the applicant is asking to change the entire Comprehensive Plan for Lane County. He added that also changes the Transportation System Plan. He stated that roads that were built to accommodate rural residences and forest practices would be changed to accommodate heavy industrial use. He said the costs and the benefits of those road upgrades are going to the gravel quarry. He commented the applicant should either agree with this or the County should deny the application. He suggested the County give the applicant ten days to provide Lane County with a written agreement that they would pay for the road improvements if the application were approved. He added if the applicant doesnít approve that, the County should deny the application because they are not minimizing conflicts.
Fodor commented that the Lane County process is wrong. He noticed inconsistencies with state law. He said there was no step defining impact areas or any steps to identify conflicts or determine whether mining is allowed or for future resources from conflicts with the Goal 5 resource future land uses.
Fodor wanted the Board to consider the question of whether gravel transport is specifically excluded from the process. He said trying to separate gravel mining from hauling is difficult. He noted that land use regulations recognize that each and every land use involves different activities and they constitute potential considerations and impacts to surrounding land uses. He stated that Goal 5 does not limit consideration of impacts to the mine site itself. He said the Goal 5 language is written so as to be inclusive of all potentially significant conflicts. He noted that Luba has stated "to discern the meaning of an administrative rule, we first look to its text and context." He noted what they have with Goal 5 is an administrative rule.
With regard to Chapter 4 of Goal 5, Fodor noted that local government shall determine an impact area for the purpose of identifying conflicts with proposed mining and processing activities. He noted the second step of the eight-step sequence is where they need to go in the process. He said the impact area shall be large enough to include uses listed in subsection (b) of this section and shall be limited to 1500 feet from the boundaries of the mining area except where factual information indicates significant potential conflicts beyond this distance. He noted Section B of that same section noted that local government shall determine existing or proved land uses within the impact area that would be adversely affected by proposed mining operations and shall specify predicted conflicts. He added the purpose of the section is to approve land uses or dwellings. He thought everything about the section was intended to be as inclusive of all possible conflicts as it could be, with a few exceptions: (a) conflicts due to noise, dust or other discharges are among the conflicts with regard to the existing and approved uses associated with the activities that government must consider, and (b) unless a greater distance is necessary in order to include intersections with the nearest arterial.
Fodor explained the question he is asking the Board is does Goal 5 limit consideration of potential conflicts in such a way to exclude transport of gravel from the mining site. He said they have to determine what are mining and processing activities. He said they have to go to a state source to come up with definitions. He noted there are references in the definition section. He stated that mining is the extraction and processing of mineral or aggregate resources in the manner provided in ORS. He added the section of mining includes all or any part of the process of mining. He said it did not exclude gravel transport, it was stating that mining included all or any part of the process of mining. He didnít know how transport could not be included.
With regard to processing activities, Fodor said they were referred to an ORS definition that stated processing includes, but is not limited to, crushing, washing, milling, screening, etc. He said it does not exclude gravel transport. He said the indication from the administrative law is that it was intended to address conflicts and they have conflicts resulting from the gravel hauling process and to exclude them would create a preposterous situation.
Fodor noted they had a noise conflict that will result because the road is a private haul road. He said the second noise violation is Section 35 and that relates to noise control regulation for a new industry or commerce. He said the applicant had argued that this is not new, but that is what the land use application is about. He said it is a new use and falls under the statute. He noted they have noise testimony and the data shows they would both be violated.
Fodor commented there would be three types of pollution that would be generated by gravel trucks that would impact the area and would be violated. He said there are articles in the record indicating how in past gravel operations, dust was distributed all across the area. He said violating that standard would be likely.
Fodor stated that if local land use laws do not directly conflict with Goal 5, then they are applicable if they are relevant to the case. He said that would include all of Lane Code except the sections of Lane Code that deal with mining. He said the applicant needs to provide a 20-year forecast of traffic to determine how this decision would affect the traffic. He added the applicant must model the worst-case scenario, which is the heaviest use of the gravel quarry currently allowed. He suggested having the maximum number of trips being 1,000 loads per day and forecast for that.
With regard to the impact area, Fodor noted there are impacts all along the haul road and they run up to the private road. He noted the area is about 800 feet out from the road, where the noise level dissipates adequately in order to not violate DEQ standards. He stated the transportation of gravel is an impact included in Goal 5 and the area is the correct impact area to be applied to this case.
Sorenson asked what other reasons Fodor thought the application should be rejected.
Fodor responded Goal 5 only gives one basis for outright rejection: the application. He noted the applicant did not mitigate or minimize road conflicts and that is the basis for denial. He added Lane Manual allows for the applicant to bring this before the Board and because they had not agreed to minimize the conflicts, it has come before the Board. He noted the rest involves a process. He said Goal 5 then instructs the applicant to minimize the conflicts that had been identified. He said they had identified four conflicts with two noise violations, a dust violation and a potential violation from other discharges. He said if the applicant couldnít show how they cannot be minimized, then the application could be denied. He said that would be done with an ESEE study that looks at the pros and cons of whether or not this is a needed gravel quarry, with the cost and benefits to the community. He noted there was another gravel quarry two miles down Sears Road that serves the area well. He didnít think this gravel quarry was needed. He said the ESEE analysis would be hard to demonstrate that there was an overall benefit. He said where the applicant couldnít minimize the impacts according to the satisfaction of the Board; they are able to deny the application.
Dwyer commented that with the 180-day rule, if someone brought in everything that they needed for the application, the law requires the Board to grant the application within 180 days. He said sometimes the process is set aside by mutual agreement where information gathering is taking place. He said while the 180 days and one year rule might be on the books, he had never seen it applied to require the government to do what it is supposed to do especially if they are doing a good faith effort to comply with the request for information.
Marie Woods, 82846 Bradford Road, Creswell, said she moved into her home in 1977 and it was quiet country living. She noted that Bradford Road had been identified as a secondary haul road. She said if the quarry is allowed to proceed and process gravel, no one in their neighborhood would enjoy the dream of quiet country living. She said the impact area is unrealistic because the dump trucks would be running on one-lane roads. She said there would be dust everywhere and she was also concerned about the children because of all the trucks on the road.
Blaze Anzalone, 82886 Bradford Road, Creswell, opposed the quarry. He said they moved into the area last September and if the quarry is permitted, wildlife might leave. He added the blasting could damage the homes in the area. He said the 80 gravel trucks going down the road would impact the health and welfare of the residents with the dust and diesel fumes. He noted the quarry is incompatible with the current land use and most of the residents would not have purchased homes in that area if they had known of the quarry. He said it wasnít fair for the health and welfare of 80 families for the financial gain of one. He asked the Board to vote the proposal down.
Norma Anzalone, 82886 Bradford Road, Creswell, protested the issuing of a permit to Ross Bradford and BJ Equipment for a rock quarry or gravel pit. She has a concern about the quarry being in their neighborhood with so many homes and families already there. She said the blasting could affect their wells and their water supply. She added 80 trucks would leak diesel fuel that might end up in their groundwater. She commented there are no watchdogs for problems that could come from a quarry. She stated their property values would go down and she didnít think that Ross Bradford and BJ Equipment Company should be given rezoning and permits for a quarry.
Frank Broderson, 287 S. 68th Springfield, stated he is a realtor. He said in attempting to market property immediately adjacent to Cedarcroft Road in the year 2000, he had done a market analysis valuing their property currently and after a zone change. He noted that residential appraisers penalize property on business residential streets by about 10%. He added it wasnít residential traffic, it is continuous heavy-duty truck traffic that creates noise, street degradation and in the dry weather, dust. He thought if the quarry goes in, property values could go down by a third. He said continuous quarry operation would adversely affect property values. He said both Cedarcroft and Bear Creek Roads are not designed for heavy continuous truck traffic. He asked if Lane County didnít need Eugene Sand and Gravel, what the justification was for this quarry.
Lorrane Still, 83706 Bradford, Creswell, opposed the zone change. She noted the proposed quarry is in their watershed and to grant a rezoning as requested by the applicant with blasting at the quarry site puts them in jeopardy of possible further loss of water volume and dangerous pollution to the watershed from toxic minerals within the vicinity of the quarry site. She asked the Board to turn the application down.
Bob Still, 83706 Bradford, Creswell, stated he is concerned about blasting. He was also concerned about school buses going down the roads affected by the quarry trucks.
Linda Drew, 82900 Bear Creek, Creswell, stated they purchased their home four years ago. She said it is a special neighborhood. She stated they soon learned of the proposed zoning change, but things remained quiet for a while. She said in the summer of 2001 Bradford was granted a permit to crush and haul gravel. She said the gravel trucks began going by their property. She said the noise and the smell were bad but things could get worse if the zoning change is approved. She noted their property sits on the southeast corner of Bear Creek and Bradford and it is a blind corner and traffic exiting Bradford onto Bear Creek has an insufficient line of site for safety purposes. She commented the addition of gravel truck traffic would make the site more hazardous. She said if the County wanted to remedy the safety hazard, they could possibly take some of their property to realign the roadway. She asked the Board to deny the application for the zone change.
Nena Lovinger, Land Watch, P.O. Box 5347 Eugene, urged the Board not to support rezoning of the Bradford property from F-1 non-impacted forestlands to quarry and mine operations and to disallow mining of 40 acres of the property. She commented that land use incompatibility between rural life and quarries tear at society. She added that property values would drop. She stated that rural residents should be afforded property rights that include the assurance that their property values wonít spontaneously collapse because of the imposition of a nearby incompatible use. She commented the Bradford property should retain its F1 zone designation and be managed in a sustainable manner for forestry practices.
Sorenson recessed the meeting at 5:00 p.m.
16. COMMISSIONERS' ANNOUNCEMENTS
17. OTHER BUSINESS
The Board made a special presentation to Craig Starr, who was retiring.
The meeting was adjourned at 5:00 p.m.