Community Development Department

Findings And Decision

FILE NUMBER: SMA - 05- 31

APPLICANT: David Boatman 54871 Jack Pine Road Bend, OR 97707

REQUEST:

Applicant is requesting a Surface Mining Impact Area site plan review for a proposed interior remodel and 2, 700 -square -foot addition to an existing single- family residence on- site.

STAFF CONTACT: Anthony Raguine, Associate Planner

I. APPLICABLE CRITERIA:

Title 18 of the Deschutes County Code, the County Zoning Ordinance.

A. Chapter 18. 16, Exclusive Farm Use Zones ( EFU)

Sections 18. 16. 020, . 070

B. Chapter 18. 56, Surface Mining Impact Area ( SMIA)

Sections 18. 84. 040, . 070, . 090, . 110, . 120

II. BASIC FINDINGS:

A. LOCATION: The property is located at 60602 Woodside Road, Bend, and is identified on Deschutes County Assessor' s Map # 18- 12- 21, as tax lot 1000.

B. LOT OF RECORD: The subject property is a legal lot of record via the issuance of previous development permits.

C. ZONING: The property is zoned Exclusive Farm Use — Tumalo/ Redmond/ Bend EFUTRB) and is located within a Surface Mining Impact Area Combining Zone.

D. SITE DESCRIPTION: The 4. 1 - acre property is located approximately 500 feet southwest of surface mining site # 391. The topography is flat with ornamental landscaping on- site. Vegetation between the property and mining site # 391, as confirmed by staff site visit on September 27, 2005, consists of dense sagebrush and moderately dense mature pine trees.

SMA - 05- 31

E. SURROUNDING USES: The subject property is surrounded on all sides by residential uses.

F. PROPOSAL: The applicant is requesting a Surface Mining Impact Area site plan review for a proposed interior remodel and 2, 700 -square -foot addition to an existing singlefamily residence on- site. The applicant has submitted a site plan and an application in support of the request. The application materials are incorporated herein by reference.

G. REVIEW PERIOD: The Planning Division deemed this application complete and accepted it for review on September 28, 2005.

III. CONCLUSIONARY FINDINGS:

A. CHAPTER 18. 16, RURAL EXCLUSIVE FARM USE ZONES ( EFU)

1. Section 18. 16. 020( J), Uses permitted outright.

The following uses and their accessory uses are permitted outright:

Alteration, restoration or replacement of a lawfully established dwelling that:

1. Has intact exterior walls and roof structure;

2. Has indoor plumbing consisting of a kitchen sink, toilet and bathing facilities connected to a sanitary waste disposal system;

3. Has interior wiring for interior lights;

4. Has a heating system;

FINDING: The applicant is proposing an addition an existing lawfully established dwelling ( 1978 building permit). The dwelling includes items 1- 4 above. Based on this information, the proposed addition to the dwelling qualifies as a use permitted outright.

2. Section 18. 16. 070, Yards.

A. The front yard shall be 40 feet from a property line fronting on a local street, 60 feet from a property line fronting on a collector and 100 feet from a property line fronting on an arterial.

B. Each side yard shall be a minimum of 25 feet, except that for nonfarm dwelling proposed on parcels or lots with side yards adjacent to a property currently employed in farm use, the side yard shall be a minimum of 100 feet.

C. Rear yards shall be a minimum of 25 feet, except that for nonfarm dwellings proposed on parcels or lots with rear yards adjacent to a property currently employed in farm use, the rear yard shall be a minimum of 100 feet.

FINDING: Based upon the submitted site plan, the proposed addition would comply with the 40 -foot front yard setback, with the side and rear yard setbacks in excess of 100 feet. As submitted, the project would meet the above -referenced criterion. The height of the structure and compliance with solar setbacks would be checked with the building permit.

CHAPTER 18. 56 SURFACE MINING IMPACT AREA COMBINING ZONE ( SMIA)

1. Section 18. 56. 040, Uses permitted outright.

Uses permitted outright shall be those identified in the underlying zone( s) with which the SMIA Zone is combined.

FINDING: This section states that those uses allowed outright in the underlying zone are allowed outright in the SMIA zone. The proposed dwelling addition is allowed outright in the EFU zone and, thus, allowed outright in the SMIA zone.

2. Section 18. 56. 070, Setbacks.

The setbacks shall be the same as those prescribed in the underlying zone, except as follows:

A. No noise -sensitive or dust -sensitive use or structure established or constructed after the designation of the SMIA Zone shall be located within 250 feet of any surface mining zone, except as provided in DCC 18.56. 140; and

B. No noise -sensitive or dust -sensitive use or structure established or constructed after the designation of the SMIA Zone shall be located within one- quarter mile of any existing or proposed surface mining processing or storage site, unless the applicant demonstrates that the proposed use will not prevent the adjacent surface mining operation from meeting the setbacks, standards and conditions set forth in DCC 18. 52. 090, 18. 52. 110 and 18. 52. 140, respectively.

C. Additional setbacks in the SMIA Zone may be required as part of the site plan review under DCC 18. 56. 100.

FINDING: Based upon the distance between the subject property and the mining site, and the proposed setbacks, the dwelling addition would be approximately 900 feet at its closest point to Surface Mining Site 391. Section B. 4. below addresses how the proposed addition would not prevent surface mining operation from meeting the setbacks, standards, and conditions set forth in DCC 18. 52. 090, 18. 52. 110 and 18. 52. 140.

3. Section 18. 56. 090, Specific use standards.

The following standards shall apply in the SMIA Zone:

A. New dwellings, new noise -sensitive and dust -sensitive uses or structures, and additions to dwellings or noise and dust -sensitive uses or structures in existence on the effective date of Ordinance No. 90- 014 which exceed 10 percent of the size of the existing dwelling or use, shall be subject to the criteria established in DCC 18. 56. 100.

FINDING: The proposed addition to the home would exceed 10% of its 2, 338 -squarefoot size and, therefore, is subject to SMIA site plan review.

4.

Section 18. 56. 100, Site Plan Approval Criteria.

C. The Planning Director or Hearings Body may grant or deny site plan approval and may require such modifications to the site plan as are determined to be necessary to meet the setbacks, standards and conditions described below.

D. The site plan shall be approved if the Planning Director or Hearings Body finds that the site plan is consistent with the site- specific ESEE analysis in the surface mining element of the Comprehensive Plan and that the proposed use will not prevent the adjacent surface mining operation from meeting the setbacks, standards, and conditions set forth in Sections 18. 52. 090, 18. 52. 110, and 18. 52. 140, respectively.

FINDING: The following findings address the proposal' s consistency with the site- specific ESEE analysis for Surface Mining Site No. 391. In addition, these findings will address how the proposed residence will not prevent the mining operation occurring at Surface Mining Site No. 381 from meeting the applicable setbacks, standards, and conditions set forth in Chapter 18. 52, Surface Mining zone.

Conformance with ESEE Analysis in the Comprehensive Plan

The ESEE ( Economic, Social, Environmental, and Energy) analysis adopted by the county for Surface Mining Site No. 391 includes a plan to preserve mineral and aggregate resources onsite, conflicting Goal 5 resources on- site, and existing conflicting rural residential development. The plan is as follows:

1. The mineral and aggregate resource shall be protected by zoning the site for surface mining, including on- site processing, and by prohibiting future incompatible land uses ( ie: rural residential development) on the site and in the impact area through such measures as zoning restrictions and setback requirements.

2. The conflicting Goal 5 resources on the site shall be protected by such measures implemented in the zoning ordinance and/ or at site plan review) as: a. sound buffering and visual screening of the surface mining operation. b. limitation on extraction of the cinder material to five acres at a time, with ongoing incremental reclamation ( subject to review and approval by the Oregon Department of Geology and Mineral Industries); and c. placement of processing operations and equipment for the cinder material mining at a location on the site which will permit such operations within the sound and dust level limitation required by the Oregon Department of Environmental Quality. d. use of vehicles in the extraction, processing and transportation of the fill material that meet DEQ vehicle noise level requirements.

3. The existing conflicting use of rural residential development on the adjacent lands in the impact area shall be protected by such measures ( implemented in the zoning ordinance and/ or at site plan review) as those included in paragraph 2 above.

FINDING: The proposed dwelling addition would meet the 250 -foot setback required in Section 18. 52. 90( A). As a Condition of Approval, the applicant shall be required to sign a Waiver of Remonstrance Easement for Surface Mining Site No. 391. In addition, the proposed dwelling addition would be sited a minimum of 900 feet from any surface mining operations. Between the subject property and surface mining operation site is moderately dense pine tree growth and two dwellings that would aid in buffering the mining operations from the residential use.

Conformance with Section 18. 52. 090, Minimum use setbacks

As noted above, the proposed addition would not be located within 250 feet of the mining site. The addition would be approximately 900 feet southwest of the surface mining zone.

Conformance with Section 18. 52. 110, General operation standards

FINDING: Since Surface Mining Site 391 is a preexisting mining site, this section does not apply with the exception of State Department of Environmental Quality ( DEQ) standards relative to air quality and noise.

Air Quality

The area of mining activity is located near the center portion of the mine. Based on the distance between the proposed dwelling of approximately 900 feet from the mining activities in the pit, the intervening vegetation consisting of moderately dense mature pine trees, and the existence of other nearby residences that are closer to the surface mine than the subject application, the proposed dwelling would not prevent the surface mine from meeting DEQ air quality standards.

Noise

This subsection requires a mining operation to not create noise from vehicles, equipment, or accessory uses which are audible off the site and which exceed DEQ noise control standards. Based on DEQ noise tables, staff estimates the trucks, dozer, and loader used on the site generate 86 dBA ( Decibels, A -weighted scale) of noise on the site.

Noise decreases with distance from a source according to the following noise attenuation formula used by DEQ: 20 log D/ 50

The letter D represents the distance between the source of noise and the location where noise is heard. Staff estimates that, based on the site plan submitted with the application and a year 2000 aerial photograph of the area that shows the subject property and surface mining activities occurring on Site No. 381, the proposed dwelling will be about 900 feet from current mining activities. Using the attenuation formula, staff finds the noise level drops by 25 dBA ( 20 log 900/ 50) by the time noise generated at the mining site reaches the applicant' s proposed addition. Therefore, staff estimates the noise level would be 61 dBA ( 86 dBA - 25 dBA) during operations.

Because of variations in equipment and topography between the mining site and the dwelling addition site, and atmospheric conditions, the attenuation formula is considered accurate to no more than +/- 2 dBA. Therefore, staff finds the resultant noise level at the proposed addition due to current mining activity to be between 59 to 63 dBA. Noise generated at this mining site is required to meet the standards found in Table 7 of OAR 340- 35- 035, for existing industrial sources of noise. This table sets forth the L50, L10, and L1 noise levels between the hours of 7

SMA - 05- 31 a. m. and 10 p. m. to be 55 dBA, 60 dBA, and 75 dBA, respectively. ( L50, L10, and L1 refer to the level of noise that is expected to occur during 50%, 10%, and 1% in any given hour, or 30 minutes, 6 minutes, or 36 seconds, respectively.)

Due to the type of equipment and the duration of particular phases of activity during mining of cinders and aggregate, the county considers the L10 noise level for medium duration noises to be the appropriate standard to use for evaluating mining operations. The L10 standard is 60 dBA, based on the above mentioned Table 7. As indicated above, staff estimates that noise can be expected to reach a level of up to 63 dBA at the proposed dwelling addition. This noise level is a potential maximum based on the variability of the attenuation formula.

The above -referenced noise attenuation results indicate that the proposed dwelling addition could cause surface mining activities to exceed DEQ noise standards. However, the 63 dBA noise level does not account for the moderately dense tree cover and two other residential units located between the proposed dwelling addition and the mining site. Additionally, according to the County Assessor' s records, there are over 20 noise -sensitive uses closer to the mining site than the proposed project. Given the existing noise sensitive uses adjacent to the mining site, the proposed project would not result in mining operations exceeding applicable noise standards.

4. Section 18. 56. 120, Waiver of Remonstrance.

The applicant for site plan approval in the SMIA Zone shall sign and record in the Deschutes County Book of Records a statement declaring that the applicant and his successors will not now or in the future complain about the allowed surface mining activities on the adjacent mining site.

FINDING: As a Condition of Approval, the applicant shall be required to sign a Waiver of Remonstrance Easement, prepared by the County, record the document in the Deschutes County Book of Records, and submit a copy of the recorded document to the Planning Division prior to the issuance of any building or placement permits.

IV. CONCLUSION:

The proposed dwelling addition would meet the criteria for development in the EFUTRB zone and SMIA combining zone if all of the conditions specified below are met.

Other permits may be required. The applicant is responsible for obtaining any necessary permits from the Deschutes County Building Division, the Deschutes County Environmental Health Division and the Deschutes County Road Department, as well as any required state and federal permits.

V. DECISION:

APPROVAL of the Surface Mining Impact Area site plan review, subject to the following Conditions of Approval.

VI. CONDITIONS OF APPROVAL:

1. This approval is based upon the site plan and information submitted by the applicant. Any substantial change in the approved plan will require a new application.

2. The applicant shall sign a Waiver of Remonstrance Easement for Surface Mining Site No. 381, prepared by the County, and record the Waiver in the County Clerk' s Office. A copy of the recorded waiver shall be submitted to the Planning Division prior to issuance of building or placement permits for the dwelling.

3. The applicant/ owner shall comply with the requirements of the Deschutes County Building Safety Division.

4. The applicant shall comply with the requirements of the Bend Fire Department.

5. The height of the dwelling shall not exceed 30 feet ( unless an exception is applied for and granted).

6. The dwelling shall meet solar setback requirements.

VII. DURATION OF APPROVAL:

The applicant shall submit an application for a building permit for the proposed addition within two ( 2) years following the date this decision becomes final, or obtain an extension of time pursuant to Section 22. 36. 010 of the County Code, or this approval shall be void.

This decision becomes final twelve ( 12) days after the date mailed, unless appealed by a party of interest.

Dated this 29th day of September, 2005.

Mailed this 29th day of September, 2005.

DESCHUTES COUNTY PLANNING DIVISION

40

Written b :' Anthony Raguine, Associate Planner

Reviewed by: Kevin M. Harrison,

AJR: slr

Principal Planner