BOARD OF COMMISSIONERS'
February 25, 2004
Commissioners' Conference Room
Commissioner Bobby Green, Sr., presided with Commissioners Bill Dwyer, Don Hampton, Anna Morrison and Peter Sorenson present.† Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present.
1. PUBLIC WORKS
a. FIFTH READING AND DELIBERATION/Ordinance PA 1188/In the Matter of Amending the Lane County Rural Comprehensive Plan to Revise the ďSignificant Mineral and Aggregate Resources InventoryĒ, Redesignate from ďForestĒ to ďNatural Resource: MineralĒ, Rezone from ďF-1/Non-Impacted Forest LandsĒ to ďQM/Quarry and Mine OperationsĒ 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 98-5144; B.J. Equipment Company) (NBA & PM 3/19/03, 4/30/03, 2/4/04 & 2/11/04).
Green asked if there were any ex-parte contacts.
Green stated he had none,
Sorenson stated that he had read the Register Guard article about the Bradford Quarry.
Morrison, Dwyer and Hampton had none.
Thom Lanfear, Land Management, recalled the last time the Board met they dealt with the conflict with riparian resources and went back to the significance of the resource and started at the beginning of the conflicts.
Discharges on Public Roads
Lanfear noted the opponents discussed the gravel trail of rocks and dirt falling from gravel trucks. He said it would seem to be an impact to a local road. He added it wasnít an item that was listed under the road conflicts, and it was also not a discharge from the mining area itself, but a subsequent discharge after the trucks† reach the public roads. He didnít think it was something covered under the rule to be considered as a discharge conflict.
Green commented there was nothing in the record that would indicate that this would be a conflict that would need to be minimized.† He supported the applicantís position.
Sorenson asked if the discharge on public roads was the same issue as the payment to the County for the overlay or additional stress on the road as a result of the trucks.
Lanfear didnít believe it was calculated into the figures from transportation planning when they figured the costs or the deterioration rate of the road.† He noted that any additional material would be considered a discharge, but for purposes of the rule it is not a discharge from the mining area.
Sorenson asked what requirement they dealt with from that discharge.
Lanfear didnít believe there was a requirement.
Sorenson asked if there was a discharge onto public roads.
Lanfear responded that the opponent discussed in a general way that gravel trucks leave little bits of rock behind. He noted the applicant responded on page 13 of 177 and identified that if a truck has a sifting or leaking load that it is a Class B traffic violation from ORS 818.300.
Sorenson didnít see a conflict.† He found that it didnít originate in the mining area.
Morrison didnít see a conflict.
There was consensus of the Board on that matter.
Lanfear stated this issue was raised in a general way.† He said there is no rural fire protection district that covers the mining site.† He said the proposed mine site and haul road would generate a significant increase in fire hazards.† He noted there was no discussion of how it is done..† He stated the mining site itself is rocky and there is no vegetation.† He said they were putting the haul road in with the mine site as a part of the hazard.He noted it wasnít clear in the record what the conflict was.
Dwyer commented the company could adopt a no smoking policy when the drivers are driving their trucks on the haul road.† He said it could decrease the risk.† He added if the company took action it could make the conflict non-existent.
Hampton noticed that the vegetation overhangs the haul road and needed to be trimmed.† He thought that was also a fire danger on the haul road.† He thought it should be remedied for the safety of the workers and for the local residents.
Sorenson asked if they could impose conditions on the operator for an area outside of the designated mining area such as no smoking on the haul road.
Vorhes said the distinction is where the conflict was significant.† He said there was consensus that there is not a significant fire hazard.† He noted if that was the case, then putting a condition to minimize conflicts is an extra step that doesnít follow the conclusion there is not a significant conflict.† He added if there is a conclusion that there is a significant conflict and limited to the mining area, then the conditions that affect that within the mining area would make sense and could be a part of the Boardís position.
Sorenson found there was a fire hazard on the haul road but not in the area of the immediate blasting and loading area.†
Dwyer thought there might be an increased risk, but it didnít rise to the level of significant.
Lanfear noted there is a neighbor that identified a concern for potential mudslides.† He said it appears they might have had some earth movement in the past based on logging that occurred on their property but there is nothing in the record that leads to a conclusion that there is a potential for earth moving from this quarry site.
There was consensus that this was not an issue.
Lanfear noted that property values were raised in the record in a few places, including the petition.† He said there is a submittal by a realtor that makes an estimate on the decrease in property values.† He said the discussion is based on the noise and dust emanating from the haul road.† He said they have to determine if this is related to a discharge from the mining area or not.† He said it didnít look like it was caused by the discharge in the mining area.
Sorenson didnít see a conflict within the mining area where the loading and blasting occurs.† With regard to the haul road, he believed there was a significant issue and the property values would be adversely affected as a result.
Dwyer said he didnít see any comparables with demonstrated facts other than an opinion to support the argument that it would be significant.
Morrison didnít think it was a problem.
Hampton noted there was testimony from various people about trying to sell their property and not being successful.† He added some people purchased property and found out after the fact that this application was in existence.† He agreed that there was no statistical evidence.†
Green commented there was nothing in the record to make the determination about loss of property values.
Conflicts with Local Roads
Lanfear explained the Goal 5 Rule has a specific provision for how they look at conflicts with local roads.† He said they look at potential conflicts to local roads within one mile of the entrance to the mining site unless a greater distance is necessary in order to include the intersection with the nearest arterial identified in the local transportation plan.† He added that conflicts shall be determined based on clear and objective standards regarding site distances, road capacity, cross-section elements, horizontal and vertical alignment and similar items in the transportation plan that implements ordinances.† He said such standards for trucks associated with the mining operation shall be equivalent to standards for other trucks of equivalent size, weight and capacity that haul other material.† He noted the nearest arterial in this matter is identified as I-5.† He said that Cedarcroft Road is a local road, Bear Creek Road is a County road and classified as a minor collector.† He added that Cloverdale Road is a state highway and classified as a major collector.
Tom Stinchfield, Public Works, indicated the applicant submitted testimony that addressed the level of service for the roads involved to analyze the traffic volumes.† He noted this was for Bear Creek, the intersection of Bear Creek and Cedarcroft, the intersection of Bear Creek and Cloverdale Road and found that the level of service would be either A or B for all of the movements at the intersection over a 20 year period, starting with the application date.† He agreed with that analysis.† He said they didnít find a congestion issue.† He noted they had the County pavement lab perform an analysis based on the projected truck traffic on the pavement and they found impacts to both Cedarcroft and Bear Creek.† He said that led them to suggest the overlay requirements in the memo.† He noted another engineer in the record looked at the site distance at both Bear Creek and Cedarcroft and Bear Creek and Bradford Road South.† He said that Bradford Road South is a restricted site distance.
Dwyer asked how the County expected to mitigate that because the problem exists whether this quarry happens or not.
Stinchfield responded that the applicantís engineer suggested they approach the state and lower the speed zone so they could bring the speed of the traffic down to match the existing site distance.† He said they could also look at additional signage to warn drivers on Bear Creek of the approaching intersection.† He noted what he thought the County would do is review the vegetation and right-of-way lines at the intersection to see if maintenance work is required.† He said it was their preliminary opinion that a capital project is not justified.
Sorenson asked what the one-mile radius issue was.
Lanfear responded the one-mile reference is specific to the conflicts to the local roads provision in the rule.† He said it was one mile from the entrance to the mining site.
Vorhes explained that the one-mile is just a starting point He thought it was farther than a mile in this matter.
Sorenson asked how many loads would be allowed by the approval of this.
Vorhes responded that there is not a condition that specifically limits the loads. He said the proposal is subject to review and was used for the purposes of the traffic analysis.
Hampton asked if the time of day was a limiting factor or just a proposal.
Lanfear responded that the applicantís proposal is to operate during all daylight hours.† He said the Planning Commission had suggested a condition that limits the time based on some submittals by the school district concerning bus traffic on the road.† He said if the Board finds they are going to approve the mining, then they could spend time on conditions of approval, making sure they match what the Board wants to occur.† He said they could set a maximum of 40 loads a day to ensure it doesnít go beyond that.
Sorenson was concerned that the current state of the record is that there is not a limit on the number of loads per day.He wanted a lower number of trucks per day and a smaller impact fee to the applicant instead of having it open to the number of trucks per day and limiting their analysis of the impact to an arbitrary number.
Dwyer stated the analysis is based on the impact of the 40 trucks. He recalled the operating hours and the mitigation regarding the number of trucks was also part of the record in the application.† He said, based on that evidence, he wouldnít have any problem making sure the impact to the Countyís system wasnít greater than that by restricting the load limit to the amount in the application.† He thought this could be mitigated from the condition of the number of trucks needed to be part of what is allowed.
Green supported it.
Morrison supported the paving of Cedarcroft but she did not support paving Bear Creek.
Dwyer didnít think if there was damage to the road as a result of this business that the taxpayers should have to pay for it.
Stinchfield explained that the applicant had indicated they didnít agree with either overlay requirement.† He said they were willing to take care of the paving of Cedarcroft, but they indicated they might appeal the requirement on Bear Creek.† They didnít think it was justified.† He noted that county staff did the analysis based on the procedures they had used previously when looking at the impact of businesses with large vehicles.† He said the applicant had indicated that they have problems with the overlay requirement on Bear Creek but it is consistent with what they had done in the past.
Green asked what the Countyís plan was for Bear Creek, if not for this application.
Stinchfield stated the long-term maintenance plan is to monitor pavement conditions and periodically inspect the road.† He said when the pavement conditions drop below a 70 out of 100, they look at the timing of an overlay to rehabilitate the structure and add strength to the road.† He said it was their suggestion that Cedarcroft be done immediately.† With regard to Bear Creek, they are recommending that some kind of payment to the County be made so the applicant could contribute to an overlay when the County decides it is needed. †He didnít think it was immediately needed.† He noted the cost would be $14,375 for Cedar Croft and $39,100 for Bear Creek.
Sorenson asked if they were to post any bonds for those amounts.
Vorhes responded if the Board reached a conclusion that there was a conflict, it could be found that it needed to be minimized by the contribution of the applicant to the cost of improving the roads.
Sorenson agreed that the state and county roads are affected by the impact on the county roads.†
Dwyer commented they were already paying weight-mile taxes for a state highway.† He said this would be an exactionHe said the applicant is against paving Cedarcroft, which he [Dwyer} thinks is reasonable.† He thought any of the paving outside of the weight-mile could be an exaction.† He didnít think it was unreasonable to ask them to take care of Cedarcroft because the standards to which that road was built was not to the standard it would be now.He thought it was reasonable to expect that they could limit the applicant to what he asked for, that the damage to the road that wasnít designed for the structural base should be taken care of, and if they could exact Bear Creek,† then require that.† He wasnít opposed to requiring it.
Hampton thought they had a strong argument for paving Cedarcroft but not for Bear Creek.† He didnít think they should interfere in what the state wants to do concerning Cloverdale.
Green believed what was in the record for the overlay requirement appears to be a level of compromise by the applicant and the County in that the applicant would agree to pave Cedarcroft, but would object to Bear Creek.† He thought there should be a sharing of costs.
Dwyer asked what the Planning Commissionís recommendation was.
Lanfear responded the Planning Commission found that there was conflict with local roads.† They didnít think they could have a discussion based on the Boardís controlling of the road fund. He said they did not come to a conclusion as to what would solve the conflict.
Dwyer agreed to limit the applicant to the information in the record.
Green, Morrison and Hampton agreed.
Green thought the center of the Board would require the paving of Cedarcroft.† He said there was not consensus to have the pavement of Bear Creek.† He said they could require it but there wasnít agreement to push it.
Dwyer agreed about Cedarcroft.† He suggested for Bear Creek, to pro-rate the expected life of the road and the percentage of use and come to a number over a period of time.† He noted the standards of that road were built for truck traffic and the weight mile is contemplated on how they tax vehicles.† He thought that could be construed to be an exaction.
Stinchfield indicated there was a comparison between a 20-year pavement design for the existing pavement structure with the existing traffic and another one adding the 40 loaded trucks per day for 20 years.† He noted the difference was an inch and a half of asphalt would be needed within the next five to ten years to deal with the additional impact of the quarry traffic.
Green noted the question before the Board was whether they support the compromise that is in the record, or if they want to provide an additional requirement so they will be able to develop findings.
Dwyer supported the finding that there is an impact on Cedarcroft as staff has recommended.† He also found that there might be an impact on Bear Creek but it has to be pro rated based on the amount of traffic generated or some scientific way to ascertain the damage done.† He thought 70% of the expected cost would be a reasonable guess or assumption to recover the excess damage that might be done by the applicant.
Vorhes explained that regarding any amounts they assign to Cedarcroft, the argument could be made that it is not connected or proportional to the impact or not allowed under the administrative rules.
Stinchfield noted in Exhibit C, on page 10, there is a proposal stating that a condition should be imposed to require the applicant to pay for Cedarcroft the overlay amount of $12,500.† He added they also proposed splitting the Bear Creek overlay costs in half of $17,500 to the County within five years for the cost of the improvement of Bear Creek.†
Lanfear indicated that one of the focal points for the delay in the application was the discussion about how much was required and how much they would be willing to pay or if it could even be required.† He noted that staff had a lengthy discussion with the applicant.† He added the applicant wrote this into the findings because staff wanted it there.† He didnít think the applicant wanted to do this.† He added the applicantís latest submittal states if there were any requirements for Bear Creek, they would probably go to LUBA to get it changed.
Dwyer agreed with what the applicant had originally and to take that point.
Lanfear asked the Board if they wanted to put a condition on some pavement overlay at Bear Creek.
Morrison was against paving on Bear Creek.
Hampton thought if it was part of their suggested proposal that is where they should start.
Green wanted to go with what was in the record with what the applicant proposed with Cedarcroft.† He was against paving on Bear Creek.
Dwyer didnít expect the applicant to pay for all of Bear Creek but there might be a proportionate amount that is reasonable.† He stated as a condition, he was willing to put that on.
Green indicated there were three commissioners in favor of the applicant paying for Bear Creek.
Vorhes said they would consider that direction to draft findings that deal with the matter where the applicantís contribution would be $17,500 for Bear Creek.
Intersection of Bear Creek and Bradford
Lanfear noted it was a pre-existing condition.
Green supported the letter in the record from the Creswell School District.
Dwyer supported and expected Public Works to improve the condition whether or not this application went through.
Hampton didnít agree with the time they had stated for start up during the school year of 7:30 a.m.
Dwyer was fine with the start time of 7:30 a.m.
Traffic Impact Analysis and Level of Services
Dwyer stated the Board agreed with it.
Lanfear noted the other part is whether it was required to go to the year 2024 or from 20 years from the initial date to 2018.
Dwyer thought they should go from the date of original application.† He said it wasnít the applicant who was always at fault for the delay.†
Morrison and Green agreed.
Sorenson asked what the Planning Commissionís recommendation was on this topic.
Lanfear stated they didnít find any conflict with the level of service on the roads.
Vorhes indicated this was more an issue under Goal 12, if there is a significant affect or impact on existing facilities and traffic capacity. He said the applicant doesnít know when the approval will occur so they start with the date of the application.
There was consensus for the year 2018.
Lanfear explained they had gone through the issues raised in the supplemental memo.† He said there might be some minor issues in the original packet that was before the Board at the hearing.† He asked if there were any other conflicts the Board was willing to discuss.† He said if they donít, then the Goal 5 Rule contemplates an ESEE analysis if they found any conflicts that could not be minimized.† He stated the Board had determined that all of the conflicts could be minimized and there was no need for an ESEE analysis.
Lanfear noted the next step would be to determine the ESEE consequence of new uses that might conflict with the resource.He noted the properties along the roads were not in the impact area.† He said the zoning around the mining area is F1 and F2.He added the existing zoning regulations place restrictions on what can occur within those zones.† He noted it has been determined that there are not any uses that are allowed in those zones that could conflict with this use because of the provisions of the applicable zone that deals with citing standards or whether you can have the use or not.† He said they didnít identify any new land uses that could come in close to the mining area that would conflict with the mine.† He said there was no ESEE analysis done.
There was consensus with that.
Lanfear reiterated the Board determined that mining should be allowed on the property.† He said the last step in the Goal 5 Rule is to make the determination that mining would be allowed and to set reasonable conditions.† He noted that LUBA has decided that state goals do apply to the use of this rule, there needs to be a finding that it is in compliance with the other state goals.
Sorenson commented he would be opposite of the Boardís conclusion on this.
Lanfear noted there was a condition for limiting the hours of operation to Monday through Friday 7:30 a.m. to 5:00 p.m. during the school year and 7:00 a.m. to 5:00 p.m. from June† 15 to the day after Labor Day.
Lanfear indicated the second condition (page 21 of the original cover memo) was limiting the access to and from the site to Cedarcroft Road only.† He said it eliminates any confusion over whether Bradford Road would be used at all.
Lanfear noted the third condition is directing the applicant to operate the machinery in conformance with DOGAMI and LRAPA permits.† He said it would make sure that the dust conflict was minimized.
Lanfear stated the fourth condition is any discharge of water at the site shall be limited by the DOGAMI permit.† He noted DOGAMI has taken over the issuance of NPDES discharge permits that deals with storm water.† He added there is not expected to be storm water discharge from the site but DOGAMI does monitor that through their permitting process.
Lanfear noted the fifth condition is a requirement that the Planning Commission wanted about giving notice about blasting to residents north of the mine site and along Bear Creek and Cedarcroft Road.† He added it was mentioned in the DLCD letter as something that might not be authorized under the Goal 5 Rule because the places that are being directed to be notified are not within the impact area of the mining site.† He said this condition requires them to send notice by means of a letter, postmarked three business days prior and posting a sign.†
Lanfear stated the sixth condition is limitation on the hours of blasting to between 10:00 a.m. and 4:30 p.m. Monday through Friday.† He noted the Planning Commission wanted seismographs to be set at the two nearest dwellings to the site on Bradford Road.
Dwyer asked if it was reasonable for the applicant to put and maintain a seismograph on private property they donít own and have no control over.† He didnít think it was reasonable.
Lanfear indicated that DLCD doesnít think Lane County has that authority.
Dwyer didnít think it was reasonable.
Green didnít think that was a condition and it should be removed.
Lanfear stated the seventh condition is the applicantís agreement that they will put a dust abatement substance on Cedarcroft Road at the haul road.† He said they would put a dust abatement substance on the unpaved portion of Cedarcroft Road at regular intervals to control the dust.† He added there was an issue with the haul road.
Sorenson thought it was reasonable for them to put the requirement in as to Cedarcroft Road.† With regard to the haul road, he said they have a policy choice to make by including the hauling road in the mining area. He said if not, then putting requirements within that seem problematic.† He thinks they should include the haul road as part of the impact area but consensus from the rest of the Board is not to do so.
With regard to the dust on the haul Road, Dwyer said they already determined that the mining area does not include the haul road.
Lanfear noted the eighth condition is a condition directing all drivers using Cedarcroft Road to not use jake breaks in the vicinity of the residents.
Sorenson stated by including the haul road in the ownership and control of the applicant and by the applicant contending that the haul road is not part of the mining area, then it puts in question what ability the Board has to regulate what is an impact from the mining area, such as the use of jake brakes in the area.† He thought they should state it is not in the mining area and they donít regulate it.
Green and Dwyer concurred.
Lanfear said the ninth condition was maintaining records of the blasting.† He noted there are standards in the quarry and mine operations.† He added the zone they are going to apply to this property has standards for keeping records about the blasting.
Lanfear noted the tenth condition is a requirement to maintain a 50-foot setback from adjacent properties for all mining and processing that comes from the proposal itself.
Lanfear stated the eleventh condition is about reclamation and the requirement to restore the site to forest use consistent with the reclamation plan that they had submitted to DOGAMI.
Lanfear said the twelfth condition is the road pavement requirements.† He reiterated the Board decision would require the Cedarcroft Road pavement and base the pavement for Bear Creek Road on the $17,500 that is in the packet.† He noted originally the County proposal was for $34,000 and the applicant suggested paying half.† He added it got increased to $39,000 because of engineering costs.† He said this condition states they will pay the County the money for Cedarcroft no later than one year after commencement of the operation.† He said they would pay the sum on Bear Creek within five years of commencement of the operation.
Lanfear said the thirteenth condition addresses neighborsí concerns about enforcement and what if the applicant doesnít operate as they said they would.† He said this verifies that if they donít operate in compliance with what they had reviewed and approved, it is subject to enforcement by the Lane Code provisions.
Lanfear said the fourteenth condition addresses any proposal for modification, subject to site review procedures.† He noted it was for any changes to the mitigation measures or physical or operational characteristics of use.† He added if they have to make any changes they have to come back for an approval.
Vorhes indicated they might take a closer look at the impact area and the conditions for approval and have an additional discussion when they come back with the final ordinance for review and action. †He added they might want to express more detail in terms of how the road improvements and payments occur.† He said the Board would take tentative action on the ordinance and direct staff to prepare revisions to the ordinance and the findings and conditions to reflect the Boardís deliberation.
MOTION:† to approve a Sixth Reading and Setting a Seventh Reading and Deliberation with the conditions subject to revised findings to be prepared for final action on Ordinance PA 1188
Dwyer MOVED, Morrison SECONDED.
There being no further business, Commissioner Green recessed the meeting at† 11:00 a.m.