HomeMy WebLinkAboutItem A: Delta Sand and Gravel
ECC
UGENE ITY OUNCIL
AIS
GENDA TEM UMMARY
Work Session: Delta Sand and Gravel
Meeting Date: April 21, 2008 Agenda Item Number: A
Department: Planning and Development Staff Contact: Kurt Yeiter
www.eugene-or.gov Contact Telephone Number: 682-8379
ISSUE STATEMENT
Delta Sand and Gravel has applied for amendments to the Metro Plan, a change in zoning, and two
variances to allow an expansion of their aggregate resource extraction business (quarry) onto a property
located immediately outside the Eugene Urban Growth Boundary (UGB) north of Hunsaker Lane.
Because this is a Type II Metro Plan Amendment, local land use regulations require approval of both
Eugene (the home city) and Lane County. Lane County acts unilaterally on the zone change and
variances.
On February 21, 2007, the City Council began deliberations on this item. As part of those deliberations,
the council determined that the application did not meet the Statewide Planning Goal 5 test for
demonstrating that the site is a significant aggregate resource site. This determination, if adopted, would
result in a City decision to deny the application. On February 20, 2008, the Lane County Board of
Commissioners adopted an ordinance and findings that would approve the application; however, the
County’s approval of the application is not effective without Eugene’s approval. At this time, the
council is asked to complete deliberations and to adopt an ordinance and findings. Three draft
ordinances with coordinated findings have been prepared for council consideration, as follows:
deny
1.Ordinance 1: An ordinance and findings that review all the relevant criteria and the
application based on several criteria, including:
a. The City Council’s previous determination that the applicant failed to prove the site
contains significant aggregate resources, and;
b. A finding, based on the Planning Commission recommendation, that the impacts of
dust were not adequately minimized.
The findings attached to the first ordinance also explicitly identify a few criteria that have not
been thoroughly addressed, since the Goal 5 findings are sufficient alone to warrant the
denial (e.g. Statewide Planning Goal 3). If the Land Use Board of Appeals (LUBA) were to
remand the matter, the City could provide a more thorough analysis of these identified
criteria. The City Attorney believes that identifying these criteria now better ensures that if
LUBA disagrees with the City’s primary bases for denial, the matter would be remanded for
further consideration (and not simply reversed).
deny
2.Ordinance 2: An ordinance and findings that the application based solely on the
council’s previous determination that that the applicant failed to prove that the site contains
significant aggregate resources; and
F:\CMO\2008 Council Agendas\M080421\S080421A.doc
approve
3.Ordinance 3: An ordinance and findings that the application, based on the findings
adopted by the County.
The council directed staff to prepare the three ordinances described above. A second meeting has been
scheduled to provide the council additional time to review the findings and deliberate before acting.
BACKGROUND
The applicant, Delta Property Company, requests that the Statewide Planning Goal Inventory for
Significant Mineral and Aggregate Sites be amended to allow a 72.31 acre expansion of the existing 474
acre sand and gravel operation. The application is a “Post-Acknowledgement Plan Amendment”
(PAPA) as provided for by Goal 5 Rule for mineral and aggregate resources, Oregon Administrative
Rules 660-023-180. The Metro Plan Designation is proposed to be changed from “Agriculture” to
“Sand & Gravel.” If the Metro Plan amendments are approved by both the City and the County, the
County has independent authority over the applicant’s request to change the site’s zoning from
“E30/Exclusive Farm Use (LC 16.212)” to “SG/Sand, Gravel & Rock Products (LC 16.217).” The
proposal requests a variance to Lane Code 16.217(4)(b)(v)(dd) to excavate within the 150’ setback along
East Santa Clara waterway in order to complete a low permeability barrier to reduce groundwater flow
into the excavated area. If the City approves the Metro Plan amendments, the County’s February 20,
2008, decision would result in the County’s approval of the variance and the zone change request (with
conditions).
On February 21, 2007, the City Council began deliberations and made a tentative decision (not formally
a part of an adopted ordinance and findings) that the applicant failed to demonstrate the site contained
significant resources. Adoption of an ordinance and findings that conclude there is not a significant
resource on the site would result in a City decision denying the application. The County Board acted to
approve the application on February 20, 2008.
If the City and County adopt different decisions, the matter will be referred to the Metropolitan Policy
Committee (MPC) for dispute resolution.
RELATED CITY POLICIES
The subject property is currently designated by the Metro Plan as Agriculture, not Sand and Gravel. The
Metro Plan encourages the use of the Urban Growth Boundary and park lands to separate sand and
gravel resources from residential areas. The subject property is separated from urban residential
properties on the other side of the UGB only by the East Santa Clara waterway, which is a protected
Goal 5 water resource site inside the UGB.
The Metro Plan contains these policies that address this topic:
·Sand and gravel sites identified as significant by the Metro Plan shall be protected in
accordance with the requirements of the Goal 5 Rule. (Metro Plan page III-C-11)
·When development is allowed to occur in the floodway or floodway fringe, local regulations
shall control such development in order to minimize the potential danger to life and property.
(Metro Plan page III-C-16)
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·Within the UGB, development should result in in-filling of partially developed land. Outside the
UGB, areas affected by the floodway and floodway fringe shall be protected for their
agricultural and sand and gravel resource values, their open space and recreational potential,
and their value to water resources. (Metro Plan page III-C-16)
The Land Use Board of Appeals (LUBA) has recently interpreted relevant state rules and determined
that the comprehensive regulatory scheme governing this matter supersedes local land use policies.
Therefore, these policies are not applied to the application.
COUNCIL OPTIONS
The City Council has the following options:
1.Adopt one of the three ordinances prepared for council review along with the accompanying findings;
2.Direct staff to amend the findings prior to adoption of one of these ordinances; or
3.Request that staff gather more information from the record before acting.
CITY MANAGER’S RECOMMENDATION
The City Manager recommends adoption of Ordinance 1, which will deny the application based on
insufficient evidence that the site contains significant resources and that dust impacts to surrounding
properties are not adequately mitigated.
The conclusions of Ordinance 1 combine the previous determination of the council (i.e., the site is not
proven to be a significant resource) and the recommendation of the Eugene Planning Commission that
dust impacts are not inadequately mitigated. The Eugene Planning Commission’s recommendations are
also reflected in the positive findings related to the adequacy of the information contained in the
application and mitigation of impacts caused by traffic, noise, flooding, groundwater, wetlands and other
sensitive habitats, and agriculture. By adopting Ordinance 1, which addresses all the Goal 5 decision
points (as opposed to Ordinance 2, which does not), the council will save time later if this decision is
reviewed by MPC or appealed to the Land Use Board of Appeals.
SUGGESTED MOTION
Move that the City Council adopt Ordinance 1, including the findings attached to the ordinance.
ATTACHMENTS
A. Decision tree and summary findings
denies
B. Ordinance 1, which reviews all the relevant criteria and the application based on findings that
the applicant failed to prove that:
(1)the site contains significant aggregate resources, and
(2)the impacts of dust were not adequately mitigated;
denies
C. Ordinance 2, which the application on the sole basis that the applicant failed to prove that the
site contains significant aggregate resources; and
approves
D. Ordinance 3, which the application.
E. Vicinity map
A complete copy of the record has been placed in the Council Office.
F:\CMO\2008 Council Agendas\M080421\S080421A.doc
FOR MORE INFORMATION
Staff Contact: Kurt Yeiter, Senior Planner
Telephone: 682-8379
Staff E-Mail: Kurt.M.Yeiter@ci.eugene.or.us
F:\CMO\2008 Council Agendas\M080421\S080421A.doc
ATTACHMENT A
Delta Sand and Gravel Decision Tree and Summary Findings
Ordinance 1 reflects the council’s direction regarding significant resources and the
Planning Commission’s recommendations regarding mitigation of potential conflicts.
Following each criteria, below, is a summary of the findings contained in Ordinance #1,
which is recommended for adoption.
Eugene Code 9.7730(3) Criteria for Approval of Metro Plan Amendment. The
following criteria shall be applied by the city council in approving or denying a Metro
Plan amendment application:
(a) The amendment must be consistent with the relevant
Statewide Planning Goals adopted by the Land
Conservation and Development Commission;
Statewide Planning Goal 1: Citizen Involvement
Summary of Finding: Consistent
Statewide Planning Goal 2: To establish a land use planning process
Summary of Finding: Consistent
Statewide Planning Goal 3: Agricultural Lands.
Summary of Finding: Consistent
Statewide Planning Goal 4: Forest Lands
Summary of Finding: Consistent
Statewide Planning Goal 5:Open Space and Natural Resources.
The state’s planning rules governing natural resource protections (the “Goal 5” rules)
provide a process in OAR 660-023for recognizing significant aggregate resources. The
rules define when a site is to be considered a significant resource, and lists areas of
potential conflict that must be reviewed when a significant aggregate resource is found to
exist on a site. The Goal 5 Rule evaluation criteria for an amendment to an approved
comprehensive plan, such as the Metro Plan, are separated into several analytical steps, as
presented below.
Step 1. Determine if the Post Acknowledgement Plan Amendment (PAPA)
information is adequate.
Summary of Findings: The application contains adequate information
for decision-making.
Step 2. Determine if the resource site is significant.
Summary of Findings: The applicant did not adequately prove that the
site contained significant resources. While there is sufficient evidence
that the quantity of the resources exceeds the two million ton criteria,
the quality of the resources is not proven. One concern is that the
samples were not “representative” as required by industry standards.
Samples from lower quality aggregate layers were mixed with samples
from higher quality aggregate layers.
A second concern is that the applicant has failed to establish that there
is an aggregate layer with an average thickness of 60 feet that is
comprised of aggregate meeting the applicable ODOT specifications
for base rock. The 60-foot requirement applies to sites where more
than 35% of the site is covered by Class II agricultural soils, such as the
expansion site.
Step 3. Determine if conflicts from mining can be minimized.
Summary of Findings: The area of potential conflict is 1,500 feet from
the boundary of the expansion site, which is consistent with a statewide
standard. There are conflicts between the proposed use and
surrounding properties regarding traffic, dust, noise, flooding and
groundwater. The project and conditions of approval that will be
imposed by the County adequately minimize all conflicts to the level of
applicable standards except dust.
Step 4. Weigh the economic, social, environmental, and energy (“ESEE”)
consequences of un-minimized conflicts and determine whether to
allow mining.
Summary of Finding: Considering the relative importance of the
mining expansion when compared to the dust impacts on the existing
and approved uses identified in prior findings (impacts that cannot be
minimized), the City concludes the ESEE consequences of allowing
mining expansion are so detrimental to the conflicting uses that mining
should not be allowed. The City concludes that the existing and
approved uses, particularly the residential uses (health effects), are of
sufficient importance relative to the proposed mining site expansion
that the expansion mining must not be allowed.
Statewide Planning Goal 6: Air, Water and Land Resources
Summary of Finding: Potential dust conflicts from the proposed mining
of the expansion area have not been minimized and, therefore, this
application is not consistent with Goal 6 regarding air quality.
Statewide Planning Goal 7: Natural Disasters and Hazards.
Summary of Finding: Consistent
Statewide Planning Goal 8: Recreational Needs
Summary of Finding: Consistent
Statewide Planning Goal 9: Diversify and Improve the Economy
Summary of Finding: Consistent
Statewide Planning Goal 10: Housing
Summary of Finding: Consistent
Statewide Planning Goal 11: Public Facilities and Services
Summary of Finding: Consistent
Statewide Planning Goal 12: Transportation
Summary of Finding: Consistent
Statewide Planning Goal 13: Energy
Summary of Finding: Consistent
Statewide Planning Goal 14: Transition from Rural to Urban Land Use
Summary of Finding: Consistent
Statewide Planning Goal 15: Willamette River Greenway.
Summary of Finding: Not applicable.
Statewide Planning Goals 16, 17, 18, 19:Estuarine Resources, Coastal Shorelines,
Beaches and Dunes, and Ocean Resources
Summary of Finding: Not applicable.
Eugene Code 9.7730(3) Criteria for Approval of Metro Plan Amendment:
(b) Adoption of the amendment must not make the Metro Plan
internally inconsistent.
Summary of Finding: In LUBA’s decision in Eugene Sand and Gravel Inc. v.
Lane County, 44 Or LUBA 50, rev’d in part on other grounds, 189 Or App 21,
74 P3d 1085 (2003), LUBA found that the City is prohibited from considering
or applying local plan policies that go beyond OAR 660-023-0180 in reviewing
this proposal. Since previous findings have identified other bases for denial of
the proposal, the City does not address the Metro Plan policies.
ATTACHMENT B
ORDINANCE 1
ORDINANCE NO. ___________
AN ORDINANCE DENYING PROPOSAL TO AMEND THE EUGENE-
SPRINGFIELD METROPOLITAN AREA GENERAL PLAN (METRO
PLAN) TO REVISE THE GOAL 5 SIGNIFICANT MINERAL AND
AGGREGATE RESOURCES INVENTORY AND REDESIGNATE FROM
“AGRICULTURE” TO “SAND & GRAVEL; AND PROVIDING AN
EFFECTIVE DATE.
The City Council of the City of Eugene finds that:
A.
In August 2005, application No. PA 05-6151 was made to Lane County for a
Type II Metro Plan Amendment to add property located outside the Metro Plan UGB and within
the Metro Plan Boundary to the Metro Plan Goal 5 Inventory of Significant Mineral &
Aggregate Sites, to change the Metro Plan designation for that property from “Agriculture” to
“Sand & Gravel” and to concurrently rezone that property in the County’s Rural Comprehensive
Plan.
B.
Sections 9.7700 through 9.7750 of the Eugene Code, 1971 (“EC”) set forth
procedures for amendment of the Metro Plan. Pursuant to the procedures described at EC
9.7730(2)(b), the Board of Commissioners of Lane County referred the above-described
application to the City Council of the City of Eugene for City action on the proposed Metro Plan
amendments.
C.
The Eugene Planning Commission reviewed the proposal with the Lane County
Planning Commission in public hearings on November 15, 2005 and January 25, 2006,
deliberated jointly on July 25, and August 30, 2006 and the matter was forwarded to the City
Council and Board with formal Planning Commission recommendations.
D.
The City Council has conducted a public hearing and is now ready to take action.
NOW, THEREFORE,
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1.
The Metro Plan amendments proposed by application No. PA 05-6151 (Lane
County) is hereby denied.
Section 2.
This Ordinance shall become effective 30 days from its adoption by the City
Council and approval of Mayor, as provided in the Eugene Charter of 2002, or upon adoption of
an identical action by the Board of Commissioners of Lane County, whichever date is later.
Ordinance - 1
Passed by the City Council this Approved by the Mayor this
____ day of ____________, 2008 ____ day of _______________, 2008
___________________________ _______________________________
City Recorder Mayor
Ordinance - 2
Exhibit A to Eugene Ordinance No. __________
FINDINGS OF FACT AND CONCLUSIONS OF LAW
GENERAL FINDINGS AND CONCLUSIONS:
Delta Sand and Gravel Company is requesting approval of Eugene-Springfield Metropolitan
Comprehensive Plan (Metro Plan) amendments to add 72.31 acres of its property to the Goal 5
Significant Aggregate Site Inventory of the Metro Plan and to re-designate that land from
Agriculture to Sand and Gravel. In addition to these Metro Plan amendments, Lane County is
also considering the applicant’s related request to rezone the subject property from Exclusive
Farm Use to Sand, Gravel and Rock Products. The subject property contains 72.31 acres and is
located adjacent to the existing Delta mining and processing facility. The property is adjacent to,
but outside of, the Eugene-Springfield Urban Growth Boundary and is located within the Metro
Plan boundary. The proposed plan amendments and rezone will allow Delta Sand and Gravel
Company to expand its aggregate mining site onto its adjacent property (the proposed expansion
area that is the subject of this request).
METRO PLAN AMENDMENT
OAR 660-023-0180 is the Oregon Statewide Planning Goal 5 Rule regarding aggregate
resources. OAR 660-023-0180(9) provides that if local governments have not amended their
comprehensive plans and land use regulations to include procedures and requirements consistent
with the Goal 5 Rule for the consideration of post-acknowledgement plan amendments (PAPAs)
regarding aggregate resources, the procedures and requirements of the Goal 5 Rule shall be
directly applicable to a local government consideration of a PAPA. Therefore, Metro Plan, Lane
Code and Eugene Code land use regulations related to PAPAs regarding aggregate resources are
not applicable to this application. The Land Use Board of Appeals decision in Morse Bros. v.
Columbia County, 37 Or LUBA 85 (1999) supports the conclusion that OAR 660-023-0180(9)
preempts the application of local comprehensive plan amendment to such PAPAs until the local
comprehensive plan and land use regulations have been amended to comply with the Goal 5
Rule.
The Metro Plan has not been amended to adopt procedures and requirements consistent with the
Goal 5 Rule for the consideration of such PAPAs. The Lane Code and the Eugene Code do not
contain specific criteria regarding the consideration of a PAPA proposing to add a site to the
Metro Plan’s acknowledged list of significant aggregate sites and have not been amended to
conform to the requirements of the Goal 5 Rule through periodic review. Therefore, only the
provisions of the Goal 5 Rule shall be directly applicable to Eugene and Lane County’s
consideration of this application.
METRO PLAN AMENDMENT CRITERIA AND FINDINGS
The subject property is within the Metro Plan boundary and outside of the Eugene-Springfield
Urban Growth Boundary. The application requests an amendment to the Metro Plan diagram
which is a Type II Metro Plan amendment. The application constitutes a citizen-initiated Type II
Metro Plan amendment.
Eugene Code 9.7730(3) - Approval Criteria
Ordinance - 3
(3) Criteria for Approval of Plan Amendment. The following
criteria shall be applied by the city council in approving or
denying a Metro Plan amendment application:
(a) The amendment must be consistent with the relevant
Statewide Planning Goals adopted by the Land Conservation and
Development Commission; and
(b) Adoption of the amendment must not make the Metro Plan
internally inconsistent.
Statewide Planning Goal 1
To ensure the opportunity for citizen involvement in all
phases of the planning process.
Chapter 9 of the Eugene Code provides for a notification and participation process for all quasi-
judicial land use matters. Notice was provided in conformance to these requirements. By
providing the notices required by state law and the Eugene Code and public evidentiary hearings
before its planning commission and City Council, the City of Eugene satisfies the requirements
of Goal 1.
Some participants raised concerns about the procedures used to consider the application. The
applicant’s request is composed of numerous applications. Those applications, taken alone,
would be subject to different review procedures under the City and County Codes. Under one
applicable process, the City Council and Board of Commissioners would not have accepted new
evidence for their review (instead, they would base their decision on the evidence gathered in the
Planning Commissions’ process). However, another applicable process required them to accept
new evidence. To allow for a consolidated review while ensuring that no participant’s
substantial right is prejudiced, the City and County opted to accept new evidence. The criteria
applicable to the applications are very similar, making it nearly impossible to judiciously oversee
a process that allowed new evidence only with respect to one of the applications, but not the
others. By providing for all of the procedural safeguards for a quasi-judicial evidentiary hearing,
the City and County ensured that Goal 1 was satisfied.
Statewide Planning Goal 2
To establish a land use planning process and policy framework
as a basis for all decisions and actions related to the use of land
and to assure an adequate factual base for such decisions and
actions.
The Eugene-Springfield Metropolitan Area General Plan (Metro Plan) is the policy tool that
provides a basis for decision-making in this area. The Metro Plan was acknowledged by the
State in 1982 to be in compliance with statewide planning goals. These findings and record
show that there is an adequate factual base for City’s decision concerning the proposed
amendments. Goal 2 requires that plans be coordinated with the plans of affected governmental
units and that opportunities be provided for review and comment by affected governmental units.
To comply with the Goal 2 coordination requirement, the City coordinated the review of these
amendments with all affected governmental units. Specifically, notice was mailed to Lane
County Transportation Planning, Lane County Flood Management, Lane County Water
Quantity/Quality, Santa Clara (neighborhood) Community Organization, Oregon State Parks &
Recreation Department, 1000 Friends of Oregon, Oregon State Fish and Wildlife Department,
Ordinance - 4
Oregon Department of Transportation/Planning, Division of State Lands/Wetlands, Oregon
Department of land Conservation and Development, Lane regional Air Pollution Authority,
Eugene (School) District 4J, Lane County Wetlands, Lane County Surveyors, Lane County Farm
Bureau, and the City of Eugene Planning Division. Therefore, the amendments are consistent
with Statewide Planning Goal 2. See, however, the findings under Statewide Planning Goal 3.
Statewide Planning Goal 3
To preserve and maintain agricultural lands.
Goal 3 provides for the protection of agricultural lands as those are defined under the goal.
In western Oregon, agricultural land consists of primarily Class I through IV soils identified
by the U.S. Department of Agriculture Natural Resources Conservation Service and includes
other lands found suitable for farm use considering soil fertility, climatic conditions,
availability of water and methodologies available for farm practices.
Soils on the subject property have been identified as containing 75 percent Class II soils.
The subject property contains no Class I soils (Exhibit 1).
The applicant claims that the subject property also contains a significant mineral resource site
of the quantity and quality that, pursuant to Goal 5 and the Oregon Administrative Rules
implementing Goal 5, establish the subject property as for aggregate purposes. The
administrative rules recognize that significant aggregate resources may be mined in areas of
agricultural soils. The potential of such conflicts has been addressed in the sections
pertaining to the Goal 5 rule. The City of Eugene finds that the applicant failed to prove that
the mineral resources were significant pursuant to Goal 5 and the Oregon Administrative
Rules implementing Goal 5, and denies the application to reclassify the site as a Goal 5
resource. Pursuant to the denial of the application, existing agricultural lands are preserved
and maintained consistent with Goal 3.
If the applicant had provided a sufficient basis to determine that the mineral resource was
significant under Goal 5, the City would have more closely examined the testimony suggesting
that the proposal interferes with Agricultural land. It is not clear whether the City would need to
approve an exception to Goal 3 in order to change the Metro Plan designation from Agriculture
to Sand and Gravel. While sand and gravel operations are a permitted non-farm use on
agricultural lands under ORS 215.283, Goal 3 requires that non-farm uses be “minimized to
allow for maximum agricultural productivity.” The Metro Plan does so by treating agricultural
land and those lands which are designated for sand and gravel operations separately.
“Designated agricultural lands” under the Metro Plan “are protected to preserve agricultural
resource values.” Metro Plan, II-E-10. Whereas, the “Sand and Gravel” designation is applied to
lands to allow “[a]ggregate extraction and processing.” Id. While the Metro Plan does provide
for some reclamation of this area (consistent with state law), the conversion of an area from
“Agricultural” to “Sand and Gravel” completely eliminates its protected status under the Metro
Plan. Thus, the proposed removal of the applicant’s expansion area from the Metro Plan’s
Agricultural designation is arguably contrary to the Goal 3 mandate to “preserve and maintain
agricultural lands.”
In light of this, if the Goal 5 standards had been met, the City may have determined that the
applicant is required to take a Goal 2 Exception to Goal 3.
Statewide Planning Goal 4
Ordinance - 5
To preserve forest lands for forest use.
We find that Goal 4 is not applicable to this application. There has previously been a legislative
determination by the metropolitan jurisdictions, as embodied in the acknowledged Metro Plan,
that the subject property is not forest land. This determination is validated by the fact that are no
forest resources existing on the subject property or on any surrounding land and there are no
areas within the subject property that fall within the definition of forest land. Also, the soils of
the subject property (Chehalis silty clay loam, Newberg loam, Newberg fine sandy loam,
Newberg urban land complex and Camas gravelly sandy loam) have no designated Douglas Fir
site index according to Lane County’s 1997 Soil Ratings for Forestry and Agriculture.
Statewide Planning Goal 5
To conserve open space and protect natural and scenic resources.
There has previously been a legislative determination by the Metro Plan jurisdictions that no
Goal 5 resources exist on subject site except wetlands, which are addressed in these findings.
The subject property has not been included in any inventory of needed open space or scenic areas
defined by Goal 5, nor has it been identified in the Metro Plan as having any historic, cultural or
natural resources which need to be preserved and/or protected.
With respect to wetlands, EGR & Associates, Inc., in its Evaluation of Aggregate Resources
attached to the application, determined that there is a wetland located within the meander scar
(aka East Santa Clara Waterway) along the northwest boundary of the subject property. This
wetland does not extend beyond the eastern bank of the meander scar and lies within the required
150-foot mining setback from the property boundary. Avoidance of wetlands in areas not
covered by existing DOGAMI Mining Permits and will be accomplished by limiting mining
operations to areas outside the applicable setbacks from the expansion property boundary,
according to draft County-imposed conditions of approval (see staff report for November 1, 2006
public hearing, Attachment 1, Exhibit C: Lane County draft Ordinance No. PA 1238, Conditions
Necessary to Minimize Conflicts). All wetland area within the 150’ setback shall be exempted
from the administrative variance and the construction of the aquaclude would occur outside of
the wetland area. Two excavated ponds are located in the southern portion of the site, which
were previously used in aggregate extraction and are currently covered by DOGAMI permits,
and thus exempt from wetland regulation. (Exhibit 1, Exhibit E)
The Goal 5 Administrative Rule for mineral and aggregate resources specifically addresses other
Goal 5 resources and limits considerations of conflict to “Goal 5 Resource Sites” that have been
identified in the Metro Plan. The applicant claims that the subject property contains a significant
mineral resource site of the quantity and quality that establish the subject property as for
aggregate purposes pursuant to Goal 5 and the Oregon Administrative Rules implementing Goal
5. The administrative rules recognize that significant aggregate resources may be mined in areas
that contain other Goal 5 resources. The potential of such conflicts has been reviewed according
to the Goal 5 rule.
The City of Eugene finds that the applicant failed to show that the site’s aggregate resources
were significant pursuant to Goal 5 and the Oregon Administrative Rules implementing Goal
5; therefore, the application to list the site as a Goal 5 resource is denied. This action is
consistent with Goal 5 and the rules that implement it as shown below.
Step 1 Determine if the PAPA information is adequate
Ordinance - 6
OAR 660-023-0180(8) -- In order to determine whether information in a PAPA submittal
concerning an aggregate site is adequate, local government shall follow the requirements of
this section rather than OAR 660-023-0030(3). An application for approval of an aggregate
site following sections (4) and (6) of this rule shall be adequate if it provides sufficient
information to determine whether the requirements in those sections are satisfied. An
application for a PAPA concerning a significant aggregate site following sections (3) and (5)
of this rule shall be adequate if it includes:
The application at issue is for a PAPA concerning a significant aggregate site following OAR
660-023-0180(3) and (5). The applicant does not seek approval following sections (4) or (6).
Therefore, sections (a) through (e), below, apply.
(a) Information regarding quantity, quality, and location sufficient to determine
whether the standards and conditions in section (3) of this rule are satisfied;
The application includes information regarding quantity, quality, and location. The applicant has
provided an analysis of the aggregate resource, conducted by EGR & Associates, Inc. (EGR).
See File Record No.1, Original Delta application, including EGR document dated June 2005:
Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area, which is Exhibit E
in the 12 August 2005 application by Delta for a zoning change entitled “Application for
amendment of the Eugene-Springfield metropolitan comprehensive plan map and significant
aggregate resource site inventory and zone change from EFU to sand gravel and rock products”.
Supplemental information was presented by the applicant, EGR, and other persons during the
public hearings before the Planning Commission and City Council. The Eugene Planning
Commission found unanimously that there was adequate information submitted in the PAPA
application.
The City Council finds that the information provided by the applicant provides an adequate basis
for determining whether or not the standards and conditions in OAR 660-023-0180(3) are
satisfied.
(b) A conceptual site reclamation plan;
The applicant provided a conceptual reclamation plan to reflect its proposal to amend its existing
reclamation plan, approved by DOGAMI in 1987 and 1995. See File Record No.1, Original
Delta application, including Operating and Reclamation Plan, which is Exhibit J in the 12 August
2005 application by Delta for a zoning change entitled “Application for amendment of the
Eugene-Springfield metropolitan comprehensive plan map and significant aggregate resource
site inventory and zone change from EFU to sand gravel and rock products”. See also File
Record No. 17 and Exhibit 49.
The City Council finds that the reclamation plan provided by the applicant satisfies this
requirement.
(c) A traffic impact assessment within one mile of the entrance to the mining area
pursuant to section (5)(b)(B) of this rule;
For significant aggregate sites (addressed below), Section OAR 660-023-180(5)(b)(B) requires
analysis of “[p]otential conflicts to local roads used for access and egress to the mining site
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.”
Ordinance - 7
The applicant’s material indicates that the traffic volumes and location of ingress and egress will
not change from current operations, and identifies the local roads to be used for access and
egress. The applicant did not provide a traffic study, as the applicant maintains that there will be
no additional impact over current operations.
The City notes that Lane Code 15.697(1) requires that a traffic impact analysis may be required
for any plan amendment proposal, unless waived by the County Engineer as specified in Lane
Code 15.697(2). Lane Code 15.697(2) provides that the County Engineer may waive traffic
impact analysis requirements specified in LC 15.697(1) when, in the case of a plan amendment,
the scale and size of the proposal is insignificant, eliminating the need for detailed traffic
analysis of the performance of roadway facilities for the 20-year planning horizon. Lane Code
15.697(2)(b) provides that, generally, a waiver to Traffic Impact Analysis will be approved when
the plan designation that results will be entirely a resource designation or there is adequate
information for the County Engineer to determine that a transportation facility is not significantly
affected as defined in Lane County Transportation System Plan Policy 20-d. The County
Engineer waived Lane County’s requirement for a traffic impact analysis because the County
made the determination that the above provisions for a waiver were met.
The City of Eugene’s Senior Transportation Analyst opined that a traffic impact analysis would
be helpful to assess the impacts of temporal extension of operations that would be permitted by
expanding the mining site, thereby also expanding the amount of aggregate materials to be
excavated over a longer period of time (See Exhibit 29). However, the City does not find that
this information is necessary to assess the potential conflicts pursuant to OAR 660-023-
180(5)(b)(B).
The City Council finds that, since approval of the application would result in the Metro Plan
diagram designation of the subject property being changed from one resource designation
(“Agriculture”) to another (“Sand and Gravel”) and since the applicant asserts that approval of
the application will not result in any additional traffic on any local roads and, consequently, will
not significantly affect any transportation facility, the information provided, taken together, is an
adequate basis for the City to assess traffic impacts.
(d) Proposals to minimize any conflicts with existing uses preliminarily identified by
the applicant within a 1,500 foot impact area; and
The applicant has provided proposals to minimize conflicts with existing uses within a 1500 foot
impact area. See File Record No.1, Original Delta application, Introduction, in the 12 August
2005 application by Delta for a zoning change entitled “Application for amendment of the
Eugene-Springfield metropolitan comprehensive plan map and significant aggregate resource
site inventory and zone change from EFU to sand gravel and rock products,” which contains the
following consultants reports: Report on Noise Study (Daly-Standlee & Associates, Inc.)
(hereinafter referred to as “Daly-Standlee”) (Exhibit F); Air Quality Evaluation (Bridgewater
Group, Inc., hereinafter referred to as “Bridgewater”) (Exhibit G); Flood Impact Evaluation
(EGR & Associates, Inc., hereinafter referred to as “EGR”)(Exhibit H); and Digital Model-
Groundwater (EGR) (Exhibit I). Proposals to minimize conflicts with existing uses preliminarily
identified by the applicant within a 1,500 foot impact area were incorporated into draft
conditions of approval by Lane County ((see staff report for November 1, 2006 public hearing,
Attachment 1, Exhibit C: Lane County draft Ordinance No. PA 1238, Conditions Necessary to
Minimize Conflicts).
Ordinance - 8
The City Council finds that this requirement has been satisfied.
(e) A site plan indicating the location, hours of operation, and other pertinent
information for all proposed mining and associated uses.
The application includes a site plan indicating the location, hours of operation, and other
pertinent information for all proposed mining and associated uses. See File Record No.1,
Original Delta application, Introduction, in the 12 August 2005 application by Delta for a zoning
change entitled “Application for amendment of the Eugene-Springfield metropolitan
comprehensive plan map and significant aggregate resource site inventory and zone change from
EFU to sand gravel and rock products.”
Based on the findings, above, the City Council finds that the application contains adequate
materials to satisfy OAR 660-023-0180(8).
OAR 660-023-180(2)(b) -- Local governments shall apply the criteria in section (3) or (4) of
this rule, whichever is applicable, rather than OAR 660-023-0030(4), in determining whether
an aggregate resource site is significant.
The applicant submitted information to address OAR 660-023-180(3). The criteria in OAR 660-
023-180(4) are not applicable.
Step 2 Determine if the resource site is significant
OAR 660-023-180(3) -- An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource demonstrates that the
site meets any one of the criteria in subsections (a) through (c) of this section, except as
provided in subsection (d) of this section:
Above, the City finds that the applicant provided adequate information for evaluating the
significance of the resource.
Based on these findings, the Council determines that the applicant has not met its burden of
proof to establish that the aggregate resource meets the “significance” requirements of OAR 660-
023-0180(3) regarding quantity and quality of the aggregate resource.
The Council evaluated the aggregate resource in accordance with OAR 660-023-0180(3), the
pertinent parts of which follow:
(3) An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource demonstrates
that the site meets any one of the criteria in subsections (a) through (c) of this section,
except as provided in subsection (d) of this section:
(a)A representative set of samples of aggregate material in the deposit on the
site meets applicable Oregon Department of Transportation (ODOT) specifications for
base rock for air degradation, abrasion, and soundness, and the estimated amount of
material is more than 2,000,000 tons in the Willamette Valley, or more than 500,000 tons
outside the Willamette Valley;
(b)***
(c)***
Ordinance - 9
(d)Notwithstanding subsections (a) and (b) of this section, except for an
expansion area of an existing site if the operator of the existing site on March 1, 1996,
had an enforceable property interest in the expansion area on that date, an aggregate
site is not significant if the criteria in either paragraphs (A) or (B) of this subsection
apply:
(A) More than 35 percent of the proposed mining area consists of soil
classified as Class I on Natural Resource and Conservation Service
(NRCS) maps on June 11, 2004; or
(B) More than 35 percent of the proposed mining area consists of soil
classified as Class II, or of a combination of Class II and Class I or
Unique soil, on NRCS maps available on June 11, 2004, unless the
average thickness of the aggregate layer within the mining area exceeds:
3. 60 feet in Washington, Multnomah, Marion, Columbia, and Lane counties;
(a) A representative set of samples of aggregate material in the deposit on
the site meets applicable Oregon Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and soundness,
and the estimated amount of material is more than 2,000,000 tons in the
Willamette Valley, or more than 500,000 tons outside the Willamette Valley;
The applicant submitted evidence and argument to address compliance with OAR 660-023-0180
(3), subsections (a) and (d)(B). These findings evaluate the sufficiency of that evidence and
argument. The record contains expert geologic testimony on both sides of these issues. The
applicant’s analysis was provided by EGR and Associates (EGR). State rules for testing refer to
the American Society for Testing and Materials (ASTM) and American Association of State
Highway and Transportation Officials (AASHTO) manuals. The AASHTO-ASTM Standard
Practice for Sampling Aggregates language describes the sampling protocol for roadside or bank
run sand and gravel deposits under Appendix D75, section X2.3.2.
The applicant’s analysis was reviewed by Mark H. Reed, Ph.D., Mineral Resource Geologist and
Department Head of the Department of Geological Sciences, University of Oregon, who
provided testimony to the contrary. Dr. Reed received his Masters of Science degree (1974) and
doctorate degree (1977) from the University of California at Berkeley. In addition to 23 years as
an Assistant and Associate professor at the University, his postgraduate employment includes
three years (1977-1979) as a full time geologist for the Anaconda Copper Company, Butte
Montana. His experiences with the mining company included drilling, sampling, surveying,
assaying, and geophysical logging. Dr. Reed has a long list of professional affiliations, short
courses, publications, and abstracts, and has provided written testimony in over 15 cases. The
Eugene City Council finds Dr. Reed to be a credible witness.
The report of applicant’s geologic consultant EGR (Exhibit 1,Original Delta application,
including Exhibit E from EGR: Evaluation of Aggregate Resources: Delta Sand and Gravel
Expansion Area, Section 2.3), states that more than 35% of the proposed mining area consists of
Class II soils. The Council agrees with the specific part of EGR’s report that characterizes the
type of agricultural soils present on the proposed site. The Council hereby finds that more than
35% of the proposed mining area consists of Class II soils. Thus, the requirement of OAR 660-
023-0180(3)(d)(B)(i) applies to this application and requires that the average thickness of the
aggregate layer exceed 60 feet.
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As is explained in more detail below, the Council finds that the applicant has failed to meet its
burden of establishing that there is an aggregate layer with an average thickness of 60 feet that is
comprised of aggregate meeting the applicable Oregon Department of Transportation (ODOT)
specifications for base rock.
The Council also finds that EGR’s Exhibit 1,Original Delta application, including Exhibit E
from EGR: Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area (e.g. p.
5- 8 and 11-13, Figures 7, 8, and 9), Appendix E well logs and table, and related materials,
establish that there are two contiguous, but distinct, layers of sand and gravel, in the expansion
area. These layers consist of an upper layer (“younger alluvium”) and a lower layer (“older
alluvium”). Based on that information, however, we also find that neither of these individual
layers is 60 feet thick.
For the reasons stated herein, the Council finds that the applicant has failed to provide a
“representative set of samples of aggregate material in the deposit” sufficient to demonstrate the
quality of the aggregate for either layer. Instead, the applicant’s information as to aggregate
quality is based on the use of mixed samples that combine materials from the two distinct
geologic layers before testing the quality of the aggregate. This mixing of aggregate from distinct
layers before testing makes it impossible for the Council to determine that there is a layer of
aggregate of the required quality, and of sufficient thickness, sufficient to satisfy the rule.
The conclusion that the aggregate samples described by EGR (Exhibit 1,Original Delta
application, including Exhibit E from EGR: Evaluation of Aggregate Resources: Delta Sand and
Gravel Expansion Area; and
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed & M. Kupilas
including original samples and re-sampling of boreholes),
regarding significance of the resource,
and relied upon by the applicant, do not constitute the “representative set of samples of aggregate
material on the site”, as required by subsection (3)(a) of the rule, is based, in part, on the
definitions and principles of representative sampling of sand and gravel and other aggregate
deposits as laid out in the sampling standards of the ASTM (American Society for Testing and
Materials) Designation D75-97 (especially sections 3.1, X2.2.2, and X2.3.2), AASHTO
(American Association of State Highway and Transportation Officials) Standard No.T2 (sections
as for ASTM), and ACE (Army Corps of Engineers) Handbook for Concrete and Cement
Chapter CDR-C 100-75 (especially sections 3.3, 4.1, 4.3, and 5.1), sampling standards as cited in
the written and oral testimony of University of Oregon professor of resource geology Mark Reed
(
Exhibit 33 – Testimony of Concerned Santa Clara Residents on Delta Mining Expansion Proposal;
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed & M. Kupilas regarding significance of the
resource,; Exhibit 62 – Response to EGR’s assertion of significance of the resource from M Reed; Exhibit
65 – Rebuttal to applicant from Doug DuPriest, attorney; Exhibit 66 – Applicant’s final rebuttal to
Planning Commissions; Exhibits 262 and 272 – testimony from Mark Reed; and Exhibit 274 –from Doug
This conclusion is further based on the arguments in these exhibits
DuPriest w/attachments).
concerning the application of the ASTM, AASHTO and ACE standards, including Delta’s
departure from these standards by testing: (1) samples composed by mixing material from the
two separate layers of sand and gravel (the upper and the lower layers), and (2) samples that do
not include the full vertical extent of material in each of the separate layers.
The Council has considered oral and written arguments on sampling made by Delta geologic
consultant EGR (including but not limited to
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed
& M. Kupilas regarding significance of the resource; and Exhibit 66 – Applicant’s final rebuttal to
). This consideration also includes EGR’s references to subsections of the
Planning Commissions
ASTM, AASHTO and ACE standards that pertain to bulk sampling of material that is already
mined and processed, as opposed to sampling of unprocessed aggregate in the ground. The
Council finds that EGR’s sampling methodology, that mixed two distinct layers of sand and
Ordinance - 11
gravel, and that is based on principles for sampling of processed gravel (instead of unprocessed
aggregate), does not yield “a representative set of samples of aggregate material in the deposit on
the site” as specified by OAR 660-023-0180(3)(a). In reaching this conclusion, the Council
relies, in part, on the analysis contained in the Reed testimony and letters (including but not
limited to
Exhibit 33 – Testimony of Concerned Santa Clara Residents on Delta Mining Expansion
Proposal; Exhibit 62 – Response to EGR’s assertion of significance of the resource from M Reed; Exhibit
65 – Rebuttal to applicant from Doug DuPriest, attorney; Exhibits 262 and 272 – testimony from Mark
) in support of this conclusion.
Reed; and Exhibit 274 –from Doug DuPriest w/attachments
Since the Council finds that the set of samples obtained and tested by the applicant was not
representative of the aggregate material in the deposit, and the applicant has failed to provide
adequate information to otherwise characterize that aggregate material, it is immaterial, for
purposes of this decision, whether the samples collected comply with ODOT’s base rock
specifications.
Some persons speaking in support of this application suggested that, because the applicant has
operated a gravel operation on nearby land for many years, the proposed site somehow meets the
quality and quantity standards in the rule. The Council finds that this position is mistaken, for
several reasons. The applicable rule expressly requires the applicant to demonstrate, by use of
proper sampling and analysis, that the proposed new or expanded site meets specific quality,
quantity and location requirements. Proponent’s suggestion incorrectly assumes what the rule
requires be proved. Past operation of an aggregate business on nearby land is not equivalent to,
or a substitute for, the required testing and demonstration. OAR 660-023-0180(3) requires testing
of the proposed new or expanded site; the quality, quantity and location of aggregate on a nearby
property is not at issue. This contention regarding prior, nearby aggregate use also appears to
mistakenly assume or imply that the nature and extent of aggregate material from the old pit
meets current standards. In addition to being irrelevant, such evidence is absent from the record.
The purpose of these OAR aggregate standards is to ensure that an adequate depth and volume of
high quality aggregate is present in a potential new or expanded site before it is converted from
high quality agricultural land to aggregate use. Here, the applicant’s sampling methodology was
based, in part, on methodology appropriate for testing processed, instead of unprocessed,
aggregate. The applicant failed to provide samples of the full vertical extent of the aggregate
layers. The applicant has failed to provide a representative set of samples of each layer. By
mixing of material from distinct layers prior to testing, it is impossible to know the composition
of the individual layers of aggregate. Without knowing the composition of the individual layers,
and without a representative set of samples, it is not possible to determine whether the aggregate
deposit meets the standards of OAR 660-023-0180(3). For these reasons, the Council concludes
that the applicant has failed to demonstrate compliance with the requirements of OAR 660-023-
0180(3).
The estimated quantity of the resource must exceed 2 million tons to satisfy this aspect of the
criterion, since the site is located in the Willamette Valley. The applicant’s report concludes that
there is over 6 million cubic tons of material, and possibly more than 9 million cubic tons of
material, present beneath the expansion site, an amount well in excess of the 2 million ton
requirement. DOGAMI, while acknowledging that resource evaluation is not typically part of
the function of the Mined Lands Regulation and Reclamation Division, estimates the resource to
be over 15 million tons on the 53 acre site. DOGAMI based their estimate on EGR’s assumed
aggregate resource depth of 82 feet, not the 51.5 foot depth observed by DOGAMI on the site.
DOGAMI estimates did not subtract silt and clay occurrences, which, DOGAMI writes, may not
represent separate layers and may be treated as internal waste in the production phase. By not
subtracting the silt and clay occurrences, the Council concludes that the applicant has failed to
Ordinance - 12
demonstrate compliance with the requirements of OAR 660-023-0180(3)(a). (
Exhibit 144 –
DOGAMI geologist review of onsite aggregate deposit)
(b) The material meets local government standards establishing a lower threshold for
significance than subsection (a) of this section; or
Neither the City nor the County has established a lower threshold for significance. Therefore,
this section does not apply.
(c) The aggregate site was on an inventory of significant aggregate sites in an
acknowledged plan on September 1, 1996.
The expansion area was not on an inventory of significant aggregate sites on September 1, 1996.
Therefore, this section does not apply.
(d) Notwithstanding subsections (a) and (b) of this section, except for an expansion
area of an existing site if the operator of the existing site on March 1, 1996, had an
enforceable property interest in the expansion area on that date, an aggregate site is
not significant if the criteria in either paragraphs (A) or (B) of this subsection apply:
Because the City Council has found that the application does not satisfy sections (a) or (b),
findings under section (d) are superfluous. Nonetheless, to provide a complete evaluation of the
application, the City provides the finding that the applicant has not shown that the operator of the
existing site (Delta Property Company/Delta Sand and Gravel Company) did not have an
enforceable property interest in the expansion area on March 1, 1996. See Exhibit 1, original
Delta application dated August 12, 2005.
(A) More than 35 percent of the proposed mining area consists of soil classified
as Class I on Natural Resource and Conservation Service (NRCS) maps on
June 11, 2004; or
The proposed mining area does not include any Class I soil. See Exhibit 1, original Delta
application page 11, and including Exhibit E, EGR document dated June 2005, Evaluation of
Aggregate Resources: Delta Sand and Gravel Expansion Area.
(B) More than 35 percent of the proposed mining area consists of soil classified as Class II, or
of a combination of Class II and Class I or Unique soil, on NRCS maps available on June 11,
2004, unless the average thickness of the aggregate layer within the mining area exceeds . . .
60 feet in . . . Lane count[y].
The applicant’s report shows that more than 35 percent of the proposed expansion mining area
consists of Class II soils. See Exhibit 1, original Delta application page 11, and Figure 6 in
Exhibit E, EGR document dated June 2005: Evaluation of Aggregate Resources: Delta Sand and
Gravel Expansion Area.
The EGR report estimates that the average thickness of the aggregate layer in that area is 70.5
feet; however, DOGAMI evaluation observed only 51.5 feet depth (see Exhibit 144). The
Council also finds that EGR’s Exhibit A (e.g. p. 5- 8 and 11-13, Figures 7, 8, and 9, Appendix E
well logs and table), and related materials, establish that there are two contiguous, but distinct,
layers of sand and gravel, in the expansion area. These layers consist of an upper layer (“younger
Ordinance - 13
alluvium”) and a lower layer (“older alluvium”). The EGR report also acknowledges that layers
of mudflow/clay from 4 to 12 fee thick have been experienced on the existing excavation site and
are encountered along the pit wall (see also in Exhibit 1, EGR’s Exhibit A (e.g. p. 5- 8 and 11-
13, Figures 7, 8, and 9, and Boring Log of pit wall) and Exhibit 216). Based on that information,
we also find that neither of these individual layers of aggregate is 60 feet thick. Therefore, OAR
660-023-180(3)(d)(B) applies.
In summary, even if the proposed expansion site satisfied the significance criteria of OAR 660-
023-180(3)(a), because section (3)(d)(B) applies to the site, the site would not be significant.
Step 3 Determine if conflicts from mining can be minimized
OAR 660-023-180(5) -- For significant mineral and aggregate sites, local governments shall
decide whether mining is permitted. For a PAPA application involving an aggregate site
determined to be significant under section (3) of this rule, the process for this decision is set
out in subsections (a) through (g) of this section.
Because the City Council has found that the proposed expansion site is not a significant
aggregate site under OAR 660-023-180(3), findings under -180(5) are superfluous. Nonetheless,
the City provides the following findings to provide a complete evaluation of the application.
(a) The local government shall determine an impact area for the purpose of identifying
conflicts with proposed mining and processing activities. The impact area shall be
large enough to include uses listed in subsection (b) of this section and shall be limited
to 1,500 feet from the boundaries of the mining area, except where factual information
indicates significant potential conflicts beyond this distance. For a proposed expansion
of an existing aggregate site, the impact area shall be measured from the perimeter of
the proposed expansion area rather than the boundaries of the existing aggregate site
and shall not include the existing aggregate site.
The definition of “mining area” restricts the review of impacts to 1,500 feet from the boundary
of the area where mining is proposed to occur, unless factual information indicates that a
significant potential conflict from mining could occur with existing and approved uses beyond
that distance. We find that no credible factual information existing in the record to indicate or
demonstrate that analysis of a larger impact area is required for the proposed mining activity.
The applicant has analyzed all potential conflicts with mining of aggregate material on the
expansion area within an impact area extending 1,500 feet from the perimeter of the proposed
expansion area. The land uses of that impact area and the potential conflicts, with identified
mitigation measures, are discussed in the following sections.
The applicant has analyzed the potential conflicts with in an impact area extending 1500 feet
from the perimeter of the proposed expansion area. The City and County Planning Commissions
deliberated and considered whether or not the impact area extended beyond the 1500’ minimum
as they considered each conflict ‘type’. Both Planning Commissions found that none of the
conflicts extend beyond the 1500 ft. minimum impact area as measured from the perimeter of the
proposed expansion site.
The City Council agrees that the 1500 foot distance is sufficient to include the uses listed in -
180(5)(b).
Ordinance - 14
(b) The local government shall determine existing or approved land uses within the
impact area that will be adversely affected by proposed mining operations and shall
specify the predicted conflicts. For purposes of this section, "approved land uses" are
dwellings allowed by a residential zone on existing platted lots and other uses for which
conditional or final approvals have been granted by the local government. For
determination of conflicts from proposed mining of a significant aggregate site, the
local government shall limit its consideration to the following:
Uses on land surrounding the proposed expansion area, and within the impact area, consist of
residential, agricultural and industrial uses. Residences are located south, west and north of the
proposed expansion area. The nearest residence (at the southern terminus of Admiral Street) is
located approximately 40 feet north of the boundary of the proposed expansion property.
Residential subdivisions at urban densities are approved and the dwellings are under construction
due west of the expansion site, inside the Eugene Urban Growth Boundary. The Urban Growth
Boundary is located in the stream/wetland that is the western border of the proposed expansion
site. A subdivision application for additional homes located immediately west of the expansion
site (Silver Meadows Second addition) is pending. A 15.4 acre vacant property owned by
Eugene School District 4J is located immediately north of the proposed expansion site. A single
agricultural field containing nursery tree stock is located within the impact area, northeast of the
proposed expansion area. The existing Delta Sand and Gravel Company facility is located
directly east of the proposed expansion area and the Eugene Sand and Gravel facility is located
further east across the Willamette River from the Delta Sand and Gravel Company property.
(A) Conflicts due to noise, dust, or other discharges with regard to those
existing and approved uses and associated activities (e.g., houses and schools)
that are sensitive to such discharges;
The applicant has identified the potential conflicts from the proposed mining of the subject
property due to noise, dust and other discharges associated with mining and processing activities
in the proposed expansion area. Those conflicts are as follows:
Noise
:
The applicant retained Daly-Standlee, Oregon registered engineers, to prepare a noise study for
the proposed expansion area. That study, titled “Report On Noise Study for Delta Sand &
Gravel New Mining Area”, dated June 14, 2005, is attached to the application. The report
concludes that certain areas within the impact area could be subjected to mining activity noise
above the limit allowed by the Oregon Department of Environmental Quality (DEQ) for a “new
noise source” on a “previously unused site.” (See Exhibits 1 (Exhibit F) as updated on
November 14-15, 2005 to expand Zone 4; Exhibits 33, part (e), and 37 by Arthur Noxon;
Exhibit 52 by Charles Oppenheimer; Exhibits 58 and 60, Daly-Standlee; and Exhibit 59, peer
review by John Hector; Exhibit 270, from DSA responding to Noxon testimony.) The testimony
of Arthur Noxon contests the applicant’s conclusions.
Dust and Engine Emissions
The applicant retained Bridgewater to prepare an evaluation of air quality issues associated with
the proposed expansion area. That evaluation, titled “Air Quality Evaluation”, dated June 1,
2005, is attached to the application (Exhibit 1). The evaluation concludes that aggregate mining
and processing activities could generate dust and potentially create a nuisance condition for the
nearby residences due to unusual or annoying amounts of dust present in the ambient air.
Other “discharges” under the administrative rule could be defined to include air emissions from
diesel engines. However, the Bridgewater evaluation concludes that, due to the small quantity
of onsite excavation equipment and haul trucks, and the distant location of the equipment to one
another and the proposed expansion area boundary, no conflict due to diesel exhaust will result
Ordinance - 15
from mining and processing activities associated with the proposed expansion area. (see Exhibit
1, Exhibit G, and Exhibit 56, Bridgewater)
Substantial testimony was also received to address concerns about the health effects of fine
particulate matter. (See Exhibits 33, Concerned Santa Clara Citizens, including reports by
Camille Marie Sears and Stephen Kimberley, MD.; Exhibit 51, Lane Regional Air Pollution
Agency; Exhibit 53, Dick Ruth; Exhibit 61, peer review; Exhibit 63, Knepler; Exhibit 223, SAIF;
Exhibit 224, Sarah Hendrickson, MD; and Exhibits 263 and 263a, S. Kimberley, MD.) Letters
from area residents indicate existing dust conflicts and lack of adequate enforcement by the lane
regional Air Pollution Agency (LRAPA). See example Exhibits 63 (Knepler) and 65 (DuPriest).
Flooding
Testimony in the record suggests that the proposed “aquaclude” will result in increased flooding
on adjacent residential lands. The applicant retained EGR to prepare an evaluation of flood
impacts associated with the proposed expansion area. That evaluation, titled “Evaluation of
Potential Flood Impacts: Delta Sand and Gravel Expansion Area”, dated June 6, 2005, (Exhibit
1, Exhibit H). The evaluation concluded that the method of mining the proposed expansion area
will not result in a potential to impede flood flow, to reduce flood storage volume within the
flood plain or to increase the velocity of water flowing across the site. The report concludes that
the method of mining completely avoids any potential adverse flood impacts associated with
mining activities on the proposed expansion area and, therefore, that no conflicts associated with
flooding will result from mining and processing activities on the proposed expansion area.
Groundwater
The applicant retained EGR to prepare an evaluation of groundwater impacts associated with the
proposed expansion area. That evaluation, titled “Digital Model of Existing Excavation Site and
New Expansion Area”, dated June 2005, is attached to the application. The evaluation
concluded that the proposed expansion of excavation (of the expansion area) could have an effect
on groundwater resources in the immediate vicinity of the excavation. As accumulated water
(rainwater and groundwater flowing into the excavations) is pumped from the excavations, the
groundwater table could be lowered radially outward from the excavation edge. EGR noted that
expansion of excavation in the area will not significantly affect municipal water supply system
users in the area and that only one known significant groundwater user still exists in the vicinity
of excavation site. The report concludes that that user is the plant nursery immediately to the
north of the site that has already experienced most of the impact it will experience from present
or expanded excavation. The evaluation concluded that mitigation may be required if other
significant groundwater users exist in the vicinity of the excavation.
Both Planning Commissions found there were conflicts with dust, noise, groundwater, wetlands
and sensitive habitat, and agriculture. The Lane County Planning Commission additionally
identified a conflict with flooding. The Eugene City Council finds that there are predicted
discharge conflicts due to dust, noise, groundwater and flooding.
(B) Potential conflicts to local roads used for access and egress to the mining
site 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. Conflicts shall be determined based
on clear and objective standards regarding sight distances, road capacity, cross
section elements, horizontal and vertical alignment, and similar items in the
transportation plan and implementing ordinances. 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 materials;
Ordinance - 16
The primary road used for access and egress to the expansion area is Division Avenue, a Major
Collector, which intersects with the nearest Major Arterial, Beltline, at approximately 200 feet
easterly of the driveway. This is within one mile from the entrance.
We find that approval of the application would not result in any conflicts to local roads used for
access and egress to the mining site. Approval of the application would not result in any change
in the applicant’s current use of local roads used for access to and egress from its facility. The
proposed expansion area would merely be an additional area of land, adjacent to the applicant’s
existing facility, used by the applicant to provide the resource that it processes on its existing site
into a marketable product. No change or modification of the applicant’s existing aggregate
processing methodology or facility or ingress/egress onto local roads would be required as a
result of the proposed expansion of its resource extraction site. Approval of the application
would result only in the applicant’s use of the proposed expansion area as an additional,
continual and consistent source of aggregate material needed for the continuation of the
applicant’s business, at its current level of operation and production, at its current facility. We
find that that use would not result in any increase in the number of vehicles leaving or entering
the applicant’s facility for the purpose of delivering its finished product to market. Furthermore,
we find that that use would not result in an increase in the number of third party vehicles
servicing applicant’s business. No increase in product delivery or service is associated with the
applicant’s proposed addition to its source of aggregate material; therefore, no conflicts to local
roads would result from approval of the application.
(C) Safety conflicts with existing public airports due to bird attractants, i.e.,
open water impoundments as specified under OAR Chapter 660, Division 013;
The Eugene Airport is the only existing public airport in the general metropolitan area and is
located several miles from the proposed expansion area and outside the impact area. Due to that
distance separating the airport from the proposed expansion area, we find that any bird attraction
by open water impoundment on the expansion area will be negligible if at all. Furthermore, this
provision is no longer applicable since the December 23, 1996 effective date of adoption of
division 13 of OAR Chapter 660, which carries out Chapter 285, Oregon Laws 1985.
(D) Conflicts with other Goal 5 resource sites within the impact area that are
shown on an acknowledged list of significant resources and for which the
requirements of Goal 5 have been completed at the time the PAPA is initiated;
No other Goal 5 resources shown on a Metro Plan acknowledged list of significant resources
exist within the impact area. Opponents have argued that a meandering scar of the Willamette
River (“East Santa Clara Waterway”) is located on a portion of the northwestern boundary of the
expansion area and that it constitutes a wetland. The opponents further argue that the existence
and operation of the aquaclude (see discussion below regarding the aquaclude) will negatively
impact the water levels and, consequently, the functions of the wetland. EGR, in testimony
provided during the planning commission joint public hearing and deliberation, testified that the
aquaclude would not produce the types of impacts to the wetland argued by the opponents. EGR
and the applicant provided further testimony during the elected officials’ joint public hearing that
the aquaclude would be constructed in a manner that leaves the top elevation of the clay-filled
aquaclude one foot below the measured elevation of the wetland, approximately six to eight feet
below ground surface. EGR testified that, even if the opponents were correct in their arguments
that the aquaclude would negatively impact surface water that flows through the wetland (which
EGR argues they are not), the modification to the aquaclude construction that positions the
aquaclude beneath the measured elevation of the wetland will ensure that its existence and
operation will not negatively impact the wetland. Based upon the cumulative testimony of EGR
we find that, even if the wetland was a Goal 5 resource site, approval of the application will not
result in negative impacts on the wetland.
(E) Conflicts with agricultural practices; and
We find that approval of the application will not conflict with current agricultural practices
within the impact area. The only property within the impact area currently committed to
Ordinance - 17
agricultural use is tax lot 900, located on the subject property’s northern boundary. The owner of
tax lot 900 has maintained nursery tree stock on that property for many years without conflict or
negative impact from the nearby Delta Sand and Gravel Company operating facility. The owner
of tax lot 900 testified that he did not believe that Delta’s mining within the expansion area
would have negative effect on or conflict with his agricultural operation. The facility’s existing
excavation pit is immediately south of tax lot 900, well within 1500 feet of the agricultural use of
tax lot 900. Approval of the application will not change the physical relationship of tax lot 900
to the excavation area. Therefore, we find that approval of the applicant will not result in
conflicts with current agricultural practices.
(F) Other conflicts for which consideration is necessary in order to carry out
ordinances that supersede Oregon Department of Geology and Mineral
Industries (DOGAMI) regulations pursuant to ORS 517.780;
No ordinances that supersede DOGAMI regulations, pursuant to ORS 517.780 have been
identified and therefore, no consideration of other conflicts associated with such ordinances is
necessary.
(c) The local government shall determine reasonable and practicable measures that
would minimize the conflicts identified under subsection (b) of this section. To
determine whether proposed measures would minimize conflicts to agricultural
practices, the requirements of ORS 215.296 shall be followed rather than the
requirements of this section. If reasonable and practicable measures are identified to
minimize all identified conflicts, mining shall be allowed at the site and subsection (d)
of this section is not applicable. If identified conflicts cannot be minimized, subsection
(d) of this section applies.
Noise
The applicant’s expert, Daly-Standlee, concluded that, with appropriate noise mitigation
measures, noise generated by future mining operations in the proposed expansion area will
comply with the most demanding interpretation of the DEQ Noise Regulations for Industry and
Commerce at all residential properties around the proposed expansion area.
Daly-Standlee begins its analysis of potential noise impact by stating that certain areas within the
impact area may be subjected to mining activity noise above the limit allowed by the DEQ for a
“new noise source” on a “previously unused site.” DEQ noise limits for a new noise source on a
previously unused site (OAR 340-35-0015(14) and 340-35-0035(1)(b)(B)(i) (Table 8)) are more
restrictive than the noise limits for “existing noise sources” (OAR 340-35-0015(17) and 340-35-
0035(1)(a) (Table 7)). Daly-Standlee states that historically DEQ has ruled that when a mine site
is expanded onto contiguous property, noise criteria which applied to the equipment before
expansion shall also apply to the equipment while in the expansion area. Because aggregate
mining has been occurring on the 474 adjacent acres of Delta Sand and Gravel Company
ownership since 1927, it could be argued that the existing mining operation is an “existing noise
source” and that the expansion area should be subjected to the less stringent existing noise source
criteria under that historic DEQ interpretation. However, it could also be argued that the
proposed expansion area is an “unused site” and that equipment moved to that area should be
considered a “new noise source on a previously unused site.”
Delta Sand and Gravel Company has elected to address potential noise impacts of a new noise
source on a previously unused site and to subject its future aggregate extractions to the more
restrictive DEQ noise limits for such a noise source. Because Daly-Standlee states that certain
areas within the impact area may be subjected to mining activity noise above the limit allowed
by the DEQ for a new noise source on a previously unused site, this application must
Ordinance - 18
demonstrate that the potential noise impacts can be minimized. OAR 660-023-0180(1)(g)
provides that noise conflicts are considered minimized under the rule when the relevant DEQ
noise regulations (OAR 340-035-0035) are met.
Daly-Standlee proposes a variety of mitigation measures, starting with limiting the first and
second lift mining operations to the time period from 7 o’clock AM to 10 o’clock PM. Daly-
Standlee proposes alternative mining procedures at various locations of the proposed expansion
area. Those alternative procedures are provided in Tables 7 and 8 of the noise study. The study
further concludes that if the proposed alternative procedures are followed during the first and
second lifts then no noise mitigation will be required for the third and subsequent lifts. That
statement is based upon the fact that due to the depth of operating equipment below grade
(surface level), the noise barrier effect provided by the face of the excavation combined with the
distance effect will reduce noise to a level in compliance with the DEQ noise restrictions at all
locations within the impact area.
Opponents of the application, primarily through testimony of Arthur Noxon, have challenged the
Daly-Standlee report on grounds of methodology and conclusions. We find that Daly-Standlee’s
rebuttal of the opponents’ arguments is reasonable and provides significant evidence that the
DEQ noise level requirements will be met or exceeded through implementation of the proposed
mitigation measures.
Both Planning Commissions found the noise conflict could be minimized to a level that meets
the state DEQ standard. The Lane County Planning Commission vote was 3-2, with 1
abstention, and the Eugene Planning Commission vote was 3-2.
We find further that the initial construction of the aquaclude, which involves the removal,
stockpiling and return of topsoil and overburden to the trench during the surface digging,
constitutes a construction project that is exempt from DEQ noise level requirements. We also
find that the applicant’s method of construction of the aquaclude, including the creation of
temporary berms of the stockpiled topsoil and overburden, will not produce noise levels in
excess of DEQ requirements. We find that the remainder of the construction of the aquaclude,
because it involves the extraction and use of the aggregate material for aggregate production,
does not constitute a construction project. We find further that Daly-Standlee has adequately
demonstrated, in its subsequent report placed in to the record of the proceeding during the
elected officials’ public hearing, that the remainder of the construction of the aquaclude as
proposed by the applicant will not produce noise levels in excess of DEQ requirements.
Daly-Standlee concludes that, with implementation of the provided mitigation measures, the
potential noise conflicts associated with mining activity in the proposed expansion area will be
minimized consistent with the Goal 5 Rule and, based upon the Daly-Standlee analysis and
conclusions, we find accordingly.
Dust
The applicant’s expert, Bridgewater, provides evidence that, with the appropriate dust
minimization measures, mining of the proposed expansion area would be compliant with Lane
Regional Air Pollution Agency (LRAPA) airborne particulate matter emission standards and
fugitive dust requirements. We note that, for those types of conflicts addressed by local state or
federal standards, to “minimize a conflict” means to ensure conformance to the applicable
standard (OAR 660-023-0180(1)(g). Lane County’s airshed is protected and regulated by
LRAPA and the applicant currently holds an Air Contaminant Discharge Permit (ACDP) from
LRAPA for its existing mining and processing facility on the adjacent Delta property. That
ACDP requires that the rock crushing facility of the applicant remain in its current location and
also provides a limitation on the amount of rock produced from that facility.
Bridgewater provides the list of proposed dust control measures that includes the requirement
that the expansion area shall be included within the LRAPA ACDP for the existing Delta Sand
and Gravel Company operation, and that the provisions of that ACDP shall be followed by the
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applicant on the proposed expansion site. A copy of the ACDP is attached to the application
(Exhibit 1). The ACDP requires that the LRAPA-approved Fugitive Dust Control Program be
followed at the existing company site. The expansion area shall be added to the ACDP and the
Fugitive Dust Control Program shall be implemented on the proposed expansion area. We find
that the activities proposed for the expansion area will become subject to the current LRAPA
ACDP. (See Exhibit 1, Exhibit G)
Bridgewater recommends additional dust control measures and those measures are listed below
in these findings.
Opponents of the application testified that they believe that the applicant cannot minimize dust
conflicts from the proposed mining with nearby residential land uses and believe that the
aggregate extraction process (mining) creates significant conflicting amounts of dust. They cite
past examples of fugitive dust and complaints to LRAPA (Exhibits 63, Knepler, and 65,
DuPriest, as examples).
We find that potential dust conflicts have been demonstrated to result primarily from three
activities associated with mining and processing of aggregate material. Those activities are 1)
excavation of the site for aggregate material, 2) transport of the excavated material to the
processing facility and 3) the processing facility (rock crushing operations).
We find that the current ACDP includes provisions that regulate the manner in which those
activities occur on the existing Delta facility site but that the applicant has failed to provide
sufficient evidence that these regulations will control production of airborne particulate matter at
a level that meets LRAPA (and Oregon Department of Environmental Quality) standards,
particularly at point of excavation.
Furthermore, we find, based upon testimony provided in the testimony that particulate matter
that may be harmful to nearby residents and other urban uses are not readily visible to the eye,
cannot be effectively regulated based on visual inspection, and may not be visible in videos
submitted as testimony (e.g., Exhibit 267). Testimony indicated that harmful dusts may be
created at the point of excavation; that is, at the areas that will be closest to sensitive receptors
(e.g., residents and future schools). Evidence in the record also showed substantial winds from
the north, northnortheast, eastsoutheast, east, southsoutheast, and south could substantially affect
nearby land uses (for example: Exhibit 33b, Concerned Santa Clara Citizens, including reports
by Camille Marie Sears and Stephen Kimberley, MD, Exhibit 65, DuPriest, and Exhibit 267,
DVD of site conditions).
The applicant provided testimony in the form of a DVD (Exhibit 267) of the current extraction
process on the existing mining site, intended to show that the process of mining does not produce
dust. The DVD showed that the mining of the existing (wet) wall produces virtually no visible
dust; however the amount and location of naturally occurring wetness along the exaction wall
may be modified by the proposed aquaclude. The DVD also showed that the haul roads,
although watered as required by the LRAPA ACDP, were also naturally wet, but that condition
may also change because of the aquaclude. Therefore, the visual display of existing conditions is
not a convincing indicator of future conditions after the aquaclude is installed.
We note that the applicant has testified that the processing facility (the rock crusher and
associated facilities) will remain at its current LRAPA-regulated location and will not produce
finished aggregate material in excess of its current LRAPA ACDP-mandated levels. The
location of the processing facility and its production level is regulated by the ACDP. The
applicant has testified that the location of that facility and its production levels will not change as
a result of approval of this application, yet, in answer to questions at a public hearing, the
applicants also indicated that the production was somewhat flexible and reacted to demand
(Exhibit 1, application, and Exhibit 33b, Concerned Santa Clara Citizens, including reports by
Camille Marie Sears and Stephen Kimberley, MD.; Exhibit 51, Lane Regional Air Pollution
Ordinance - 20
Agency; Exhibit 53, Dick Ruth; Exhibit 61, peer review; Exhibit 63, Knepler; Exhibit 223, SAIF;
Exhibit 224, Sarah Hendrickson, MD; and Exhibit263 and 263a, S. Kimberley, MD).
Questions about LRAPA’s ability to adequately regulate in a consistent and timely manner
(Exhibit 65, DuPriest) and the long term viability of LRAPA were raised during the joint elected
officials’ hearing, (see Nepler, DuPriest, Bettman, and Taylor testimonies at the 12/12/06 joint
public hearing). In case of LRAPA’s dissolution, the Oregon Department of Environmental
Quality (DEQ) would be responsible for enforcing local air quality standards. The Council finds
that conditions of approval dependent on LRAPA’s enforcement are not satisfactory for long
term mitigation of a potentially hazardous source of dust proximate to an urban residential area.
Both Planning Commissions found unanimously that there is a conflict due to dust, and that the
conflict due to dust could not be minimized to a level that meets the DEQ emission standards
applied by LRAPA. Neither planning commission conducted further ESEE analysis because
none had been provided by the applicant.
The Eugene Planning Commission voted 3-2 that the conflict could not be minimized, and Lane
County Planning Commission voted 3-2 with one abstention.
We concur, and find that potential dust conflicts from the proposed mining of the expansion area
can not been minimized as required by Goal 5.
Flooding
EGR has concluded that the Delta Sand and Gravel Company method of mining will create no
obstructions or other physical features that could impede flood flows across the proposed
expansion area or (thereby) cause flooding on neighboring properties. Essentially that
conclusion means that flood flows should not be impeded across the proposed expansion area if
no fill within the floodway occurs. All mining activity proposed for the expansion area will
occur as excavation taking place below existing ground surfaces. Within that mining
methodology overburden will be removed and stockpiled in areas higher in elevation than base
flood elevations and/or stockpiled at locations on company property that are below existing
ground elevations. EGR concludes that the proposed mining methodology on the proposed
expansion area will not impede flood flow, reduce flood storage volume within the flood plain or
increase the velocity of water flowing across the proposed expansion area. EGR further
concludes that the proposed mining methodology completely avoids all potential flood impacts.
Opponents of the application argue that the existence and operation of the aquaclude (see
subsequent discussion and findings regarding the aquaclude) will cause flooding on adjacent
residential lands because groundwater will be prevented by the aquaclude from migrating from
those lands to the mining site during heavy rain events. EGR has addressed that argument and
has demonstrated, in its rebuttal materials provided during the planning commission joint public
hearing and deliberation, that the movement of groundwater is not connected to surface water
that constitutes flooding during such events. Nonetheless, in response to the opponents’
argument, the applicant and EGR have provided a modified aquaclude construction that leaves
the top elevation of the clay-filled aquaclude one foot below the measured elevation of the
wetland that exists on the meandering scar, approximately six to eight feet below ground surface.
While continuing to impede the rate of flow of groundwater from the adjacent property to the
expansion area (and mining pit), the aquaclude would allow the passage of a limited amount of
groundwater from the adjacent property, over the clay material and into the mining area during
heavy rain events. That elevation will also ensure that the aquaclude has no negative impact on
the water level of the wetland at different times during the year. We find that EGR has provided
significant evidence to support it conclusion that the aquaclude will minimize potential conflicts
resulting from the movement of groundwater from adjacent lands to the mining area and that its
existence and operation will not produce flooding on adjacent lands.
The Eugene Planning Commission voted 3-2 that there was not a conflict due to flooding.
Ordinance - 21
We find that approval of the application will not result in flooding conflicts with adjacent land
uses.
Groundwater
EGR recommends that a low permeability barrier, groundwater dam or other flow restriction of
the upper aquifer should be constructed, at the applicant’s expense, as the excavation proceeds to
the west. EGR concludes that the construction of a low permeability barrier could actually result
in lower pumping of water, with significant benefit to the aquifer and area groundwater users.
That low permeability barrier has been termed the “aquaclude” by EGR and the applicant.
EGR recommends that excavation should begin on the east side of the expansion area and that
the aquaclude should proceed ahead of the excavation to the west. Construction of the aquaclude
should occur before excavation comes within 400 feet of its location. The aquaclude should be
at least 12 feet wide at the bottom and slope upward through the upper aquifer from 1:5 to 2:1 to
the original ground surface. The aquaclude should be placed within the setback area to insure its
separation from the excavation proper and to place its outer edge as close as possible to the
surrounding off-site shallow aquifer. EGR also recommends that a buttress of native material be
left between the aquaclude and the excavation area proper.
EGR’s ultimate conclusion is that placement of a low permeability barrier around most of the
excavation should result in restoring groundwater levels around the excavation pit to near pre-
development levels. DOGAMI has provided the applicant with its preliminary concurrence with
EGR’s ultimate conclusion. A copy of correspondence from the agency to the applicant is
included with EGR’s evaluation attached to the application. The correspondence states that
“there may actually be a slight mounding of the ground water in the shallow aquifer within close
proximity to the barrier thus eliminating the possibilities of drawdowns which could impact
supply wells within the area.”
Construction of the aquaclude within the setback area requires an administrative variance
pursuant to Lane Code that Lane County has approved (should the Metro Plan amendments
succeed).
As discussed above in our findings regarding flooding, EGR has provided adequate and
significant evidence that the existence and operation of the aquaclude will not result in flooding
of adjacent lands. The applicant and EGR testified that the trench constructed for the aquaclude
will be filled with clay material excavated from other locations on the applicant’s adjacent
ownership and operation. We find that the proposed clay material for the aquaclude is a natural
soil that will not decompose and will not pollute underground waters.
Both Planning Commissions found unanimously that there was a conflict due to groundwater.
The low permeability barrier (aquaclude) is proposed as mitigation, and the applicant should map
the specific proposed location for the low-permeability barrier. The Eugene Planning
Commission found unanimously that the aquaclude would minimize conflicts with groundwater
to an adequate level. The Lane County Planning Commission voted 4-2 that the aquaclude
would not minimize the conflict with groundwater to an adequate level.
We find that the proposed aquaclude is sufficient mitigation to minimize conflicts.
(ORS 215.296 Standards for approval of certain uses in exclusive
farm use zones. (1) A use allowed under ORS 215.213 (2) or
215.283 (2) may be approved only where the local governing
body or its designee finds that the use will not:
(a) Force a significant change in accepted farm or forest
practices on surrounding lands devoted to farm or forest use; or
Ordinance - 22
(b) Significantly increase the cost of accepted farm or forest
practices on surrounding lands devoted to farm or forest use.)
As stated previously in these findings, the established agricultural use of tax lot 900 and the
established mining operations of the adjacent existing facility have co-existed for many years
without conflict. We find that approval of this application will not change the relationship
between the two adjacent uses and will not result in conflict between the two uses. Accordingly,
approval of this application will have no effect on the farm practices occurring on tax lot 900,
will not change those practices and will not significantly increase the cost of those practices on
tax lot 900. We further find that the historical relationship between the two uses, as testified by
the applicant and the owner of the adjacent agricultural land, coupled with the immediate
location of each to the other, provides a factual basis for the reasonable conclusion that approval
of this application is consistent with ORS 215.296.
Step 4 Weigh the Economic, Social, Environmental and Energy (ESEE)
consequences of unminimized conflicts and determine whether to allow
mining
(only need to do this Step if there are conflicts that are not minimized)
(d) The local government shall determine any significant conflicts identified under the
requirements of subsection (c) of this section that cannot be minimized. Based on these
conflicts only, local government shall determine the ESEE consequences of either
allowing, limiting, or not allowing mining at the site. Local governments shall reach
this decision by weighing these ESEE consequences, with consideration of the
following:
(A) The degree of adverse effect on existing land uses within the impact area;
(B) Reasonable and practicable measures that could be taken to reduce the
identified adverse effects; and
(C) The probable duration of the mining operation and the proposed post-
mining use of the site.
The City Council has already found that the expansion site is not a significant Goal 5
resource. Even if it was such a resource, significant conflicts caused by dust have not
been minimized. The applicant did not provide an ESEE analysis.
Based on relevant evidence in the record, the City provides the following findings weighing the
economic, social, environmental, and energy (ESEE) consequences of allowing the proposed
mining, particularly as such an allowance would relate to the conflicts created by dust.
As an initial note, the record does not contain any proposal for a limited expansion. The
proposed minimization measures could arguably be considered a limitation on the expansion,
but, as discussed above, those measures are all discussed above and do not adequately minimize
the conflict. The record does not include evidence as to how the expansion could be limited.
This is a very technical feasibility question in the case of the expansion of a mining operation;
the city cannot simply propose its own idea for an alternative smaller expansion area, as the
alternative may be geologically unsound. Without some evidence regarding an alternative
proposal, the City cannot find that a limitation on the expansion could:
- reduce the degree of adverse effect on the existing land uses within the impact area;
Ordinance - 23
- make the proposed minimization more effective to reduce the identified adverse
effects;
- avoid significant adverse effects to the economic viability of the proposed use; or
- change the probable duration of the mining operation or the proposed post-mining use
of the site.
As such, the City’s analysis concentrates on the ESEE consequences of allowing or denying the
proposal.
Allowing proposed expansion
The economic consequences of allowing the proposal are associated with continued
operations of an existing quarry for an estimated 12-15 years; that is, employment of up to 135
persons annually and (based on 2004 figures) payment of over $4,750,000 in wages, plus taxes
and charitable contributions to local endeavors. There is a non-quantified economic benefit to
having a local source of aggregate for local construction and roadway projects due to savings in
transportation costs, shortened delivery time, and less truck traffic on interstate highways and
rural roads.
The social and environmental consequences of allowing the proposal are closely tied
together. In excavating the expansion area, the applicant would be operating (at first above
grade) in areas that lie only about 150’ away from existing homes. Wind data in Exhibit 33
suggests that 47 percent of the time in drier months, and at other times throughout the year,
prevailing winds will exacerbate dust exposures to existing residents. Particulate matter can
trigger asthma attacks, cause wheezing, coughing, and respiratory irritation in individuals with
sensitive airways. Exposure to relatively low concentrations of particular matter has been linked
with premature death. Those at greatest risk are the elderly, people with pre-existing respiratory
or heart disease, children and infants (Exhibit 33: “Particulate Matter Air Pollution, May 2003”
and “Cal/EPA Ambient Air Quality Standards for Particulate Matter, June 2005”). Public
testimony at hearings revealed that there are people with sensitive airways and children living in
the area of conflict.
Evidence in the record suggests that, by allowing the expansion, there will be a positive
effect on the area’s energy use, as the aggregate used in local construction projects will be close-
by and will not need to be hauled from great distances.
Denying proposed expansion
The consequences of denying the expansion request are essentially the converse of those
that result from allowing it, discussed above. The economic consequences of denying the
proposal are that employment of up to 135 persons annually and (based on 2004 figures)
payment of over $4,750,000 in wages, plus taxes, and charitable contributions to local endeavors
will end in approximately 10 years, when the resource covered by existing permits is expected to
run out . There is a non-quantified economic benefit to having a local source of aggregate for
Local construction and roadway projects may suffer an increase in costs due to increased
transportation costs to import aggregate materials, lengthened delivery time, and increased truck
traffic on interstate highways and rural roads. Some of these impacts may be mitigated in the
short term, however, by increased activity by other local quarries. That is, other local quarry
Ordinance - 24
operations may be able to increase production in the short term to help offset the loss from Delta
Sand and Gravel.
As noted above, the social and environmental consequences of allowing the proposal are
closely tied together. Surrounding properties will not experience the increased adverse effects of
dust caused by the shorter distances between the mining operation and residences located in the
area of conflict. There would be less likelihood that people with sensitive airways and children
living in the area of conflict would experience asthma attacks, wheezing, coughing, respiratory
irritation, or premature death. (Exhibit 33: “Particulate Matter Air Pollution, May 2003” and
“Cal/EPA Ambient Air Quality Standards for Particulate Matter, June 2005”).
With regard to energy, evidence in the record suggests that, if the expansion is not
allowed, there will come a time when the aggregate used in local construction projects will need
to be hauled in from other areas, impacting the use of energy.
Analysis
(A) Degree of adverse effect on the existing land uses within the impact area
The degree of the dust’s adverse effects if the expansion is approved is discussed above. The
effects are significant. The applicant asserts that, even though its operation will be closer to the
existing residential uses, its dust impacts will not worsen. The City does not find this to be a
credible assertion and the applicant does not provide reasonable evidence to support its assertion.
(see discussion above). As discussed above, the minimization measures proposed by the
applicant are insufficient to adequately address those effects. Those previous findings are
incorporated here.
(B) Reasonable and practicable measures that could be taken to reduce the identified
adverse effects
The City’s findings, above, evaluate the effectiveness of the measures the applicant has proposed
to reduce dust creation, and the adverse effects of, the dust. As discussed above, those measures
are insufficient to minimize the effects. There is no evidence in the record to suggest that there
are other reasonable and practicable measures to reduce the effects.
(C) The probable duration of the mining operation and the proposed post-mining use
of the site.
The applicant estimates that the expansion site will provide 12-15 years of continued mining.
(Exhibit 1, Application, Page 1). The applicant provided a conceptual reclamation plan to reflect
its proposal to amend its existing reclamation plan, approved by DOGAMI in 1987 and 1995.
See File Record No.1, Original Delta application, Exhibit J. It states that “The mined area will
be filled to pre-excavation levels. No slopes will remain (same as main pit). No future use of
the reclaimed property is specified.
ESEE Conclusion
Considering the relative importance of the mining expansion when compared to the dust impacts
on the existing and approved uses identified in prior findings (impacts that cannot be
minimized), the City concludes the ESEE consequences of allowing mining expansion are so
detrimental to the conflicting uses that mining should not be allowed. The City concludes that
Ordinance - 25
the existing and approved uses, particularly the residential uses (health effects), are of sufficient
importance relative to the proposed mining site expansion that the expansion mining must not be
allowed.
Goal 5 Conclusion. The City finds that, for the reasons stated above the application is
inconsistent with Statewide Planning Goal 5.
Statewide Planning Goal 6
To maintain and improve the quality of the air, water and land
resources of the state.
Goal 6 requires that air, land and water resources of the state be maintained and improved by
assuring that future development, in conjunction with existing development, does not violate
applicable state and federal environmental quality standards, and does not exceed the carrying
capacity of local airsheds, degrade land resources or threaten the availability of such resources.
The State of Oregon, City of Eugene, and Lane County have regulatory measures in place to
regulate existing land use activities, as well as future development on the site.
The Lane Regional Air Pollution Authority (LRAPA) regulates the Lane County airshed and the
industries within it. LRAPA rules and permit requirements regulate the release of particulate
matter into the air. Its permit system for emissions provides the regulatory measures that
maintain the carrying capacity and quality of the airshed consistent with applicable state and
federal environmental quality standards. An Air Contaminant Discharge Permit (ACDP) is
required for the aggregate processing equipment and mining activities on the subject property.
Delta Sand & Gravel currently operates its existing, adjacent facility under an ACDP issued by
LRAPA (Permit No. 20119) that permits and regulates dust emissions generated by (1)
processing equipment; (2) storage piles; (3) roadways; and (4) yard activities. In addition to the
specific standards for particulate matter emissions that apply to the process operations, the
ACDP includes a requirement to follow the LRAPA-approved Fugitive Dust Control Program
for the existing facility. If Delta Sand & Gravel were to expand its operations onto the proposed
expansion site, the applicants proposed to implement the Fugitive Dust Control Program on the
expansion area to assure that its operations continue to comply with applicable state and federal
air standards. There was substantial evidence in the record that indicated that the fine particulate
matter (dust) would not be mitigated to a level of insignificance because of the proximity of
homes and school site to the proposed expansion area. The applicants did not provide an
Economic, Social, Environmental and Energy(ESEE) analysis. The City of Eugene found that
the application could not be approved pursuant to Goal 5 and the rules that implement Goal 5
(see Goal 5 findings for additional information).
We note that the applicant has testified that the processing facility (the rock crusher and
associated facilities) will remain at its current LRAPA-regulated location and will not produce
finished aggregate material in excess of its current LRAPA ACDP-mandated levels. The
location of the processing facility and its production level is regulated by the ACDP. The
applicant has testified that the location of that facility and its production levels will not change as
a result of approval of this application, yet, in answer to questions at a public hearing, the
applicants also indicated that the production was somewhat flexible and reacted to demand
(Exhibit 1). Further, the crushing facility is not the sole source of dust from the site. Significant
levels of dust result from on-site hauling. See Exhibit 218, attachment A. See also Exhibit 33b,
Concerned Santa Clara Citizens, including reports by Camille Marie Sears and Stephen
Kimberley, MD.; Exhibit 51, Lane Regional Air Pollution Agency; Exhibit 53, Dick Ruth;
Exhibit 61, peer review; Exhibit 63, Knepler; Exhibit 223, SAIF; Exhibit 224, Sarah
Hendrickson, MD; and Exhibit263 and 263a, S. Kimberley, MD. The City finds that the
evidence presented by the applicant was insufficient to overcome that presented by opponents.
Questions about LRAPA’s ability to adequately regulate and the long term viability of LRAPA
were raised during the joint elected officials’ hearing, because there have been regular, long-
Ordinance - 26
standing discussions about the agency’s on-going existence (see Nepler, DuPriest, Bettman, and
Taylor testimonies at the 12/12/06 joint public hearing). In the case of LRAPA’s dissolution, the
Oregon Department of Environmental Quality (DEQ) would be responsible for enforcing local
air quality standards. The Council finds that conditions of approval dependent on LRAPA’s
enforcement are not satisfactory for long term mitigation of a potentially hazardous source of
dust proximate to an urban residential area.
Both of the Planning Commissions found unanimously that there is a conflict due to dust, and
that the conflict due to dust could not be minimized to a level that meets the DEQ emission
standards applied by LRAPA. Neither planning commission conducted further ESEE analysis
because none had been provided by the applicant.
Eugene Planning Commission voted 3-2 that the conflict could not be minimized, and Lane
County Planning Commission voted 3-2 with one abstention.
For reasons explained in more detail under Goal 5 findings, we find that potential dust conflicts
from the proposed mining of the expansion area have not been minimized and, therefore, this
application is not consistent with Goal 6 regarding air quality.
Statewide Planning Goal 7
To protect life and property from natural disasters and hazards.
The proposed expansion area is partially located within an un-numbered A zone of the
Willamette River flood plain as illustrated on the federal Flood Area Insurance Rate Map
(FIRM) (Panel 1126 of 2975, effective June 2, 1999). It is located immediately west of a
Flood Insurance Study (FIS) area that has defined floodways and base flood elevations of the
Willamette River.
Because the floodway for the Willamette River is determined to be substantially east of the
expansion area, the FIS has determined through definition of the floodway that the expansion
area could be completely obstructed without increasing the water-surface elevation of the
100-year flood more than one foot at any point.
All mining activity proposed for the expansion area would occur as excavation taking place
below existing ground surfaces. Overburden would be removed and stockpiled in areas with
elevation higher than base flood elevations or in areas currently below existing ground
elevations. That mining methodology will preclude the need for sound berms or flood
containment berms that could impede flood flows across the expansion area. Berms
associated with the construction of the aquaclude will be temporary in nature and will be
removed by returning the material to the area of the aquaclude as construction occurs or prior
to anticipated heavy rain events.
Therefore, we find that the proposed use of the expansion area would be consistent with the
purpose and intent of Goal 7.
Statewide Planning Goal 8
To satisfy the recreational needs of the citizens of the state.
We find that there has been a legislative determination by the Metro jurisdictions through its
comprehensive planning process, as implemented by the Metro Plan diagram, that the subject
property is not designated for recreational facilities or opportunities. Identified recreational
needs have been provided for on other sites within the Metro urban area. Therefore, we find that
the proposed amendments would be consistent with Goal 8.
Statewide Planning Goal 9
To diversify and improve the economy of the state.
Ordinance - 27
Goal 9 is primarily focused on commercial and industrial development within urban areas.
To the extent that the goal is applicable to the application, we find that both the existing
agricultural use and the proposed use of the expansion area would contribute to the economy
of the Metro area through the employment of persons and by providing the natural resource
for construction, both of which contribute to the economic health of the state of Oregon.
Therefore, we find that approval of the application would be consistent with the intent and
purpose of Goal 9.
Statewide Planning Goal 10
To provide for the housing needs of the citizens of the state.
The primary purpose of Goal 10 is to ensure that sufficient buildable land is available to provide
for a full range of housing needs within the urban area and to avoid creating shortages of
residential land which would artificially restrict market choices in housing type, price range or
location. The subject property has been designated agricultural in the Metro Plan and is not
planned for residential use. There are three dwellings on the property that would be displaced as
a direct consequence of the proposed amendments. We find that the proposed amendments, and
the eventual loss of the three dwellings, would not measurably impact the existing or future
housing stock in the Metro Plan area, nor will they directly result in population growth, increase
the demand for housing beyond previously acknowledged projections, or otherwise conflict with
the purpose and intent of Goal 10.
Statewide Planning Goal 11
To plan and develop a timely, orderly and efficient arrangement
of public facilities and services to serve as a framework for urban
development.
Approval of the application would result in a natural resource use of the expansion area.
Significant levels of public services are not required for that use. Approval of the
application will not result in the need for extension of public facilities and services to the
expansion area beyond those already existing at the current facility.
To the extent that Goal 11 is applicable to this application, we find that approval of the
application will be consistent with the intent and purpose of the goal.
Statewide Planning Goal 12
To provide and encourage a safe, convenient and economic
transportation system.
The intent of Goal 12 is implemented through the provisions of the State Transportation Planning
Rule (TPR) (OAR 660, Division 12).
OAR 660-012-0060(1) requires that “amendments to functional plans, acknowledged
comprehensive plans, and land use regulations which significantly affect a transportation facility
shall assure that allowed land uses are consistent with the identified function, capacity, and level
of service of the facility.”
We find that approval of the application will not result in any change in the applicant’s current
(and future) use of local roads used for access and egress to it facility. The applicant testified
that the proposed expansion area will only be used by the applicant to provide the resource that it
processes on its existing site into a marketable product. The applicant testified that no change or
modification of the applicant’s existing aggregate processing methodology or facility will be
required as a result of the proposed expansion of its resource extraction site. Approval of the
Ordinance - 28
application will result only in the applicant’s use of the proposed expansion area as an additional,
continual and consistent source of aggregate material needed for the continuation of the
applicant’s business, at its current level of operation and production, at its current facility. The
applicant testified that that use will not result in any increase in the number of vehicles leaving or
entering the applicant’s facility for the purpose of delivering its finished product to market. That
use will not result in an increase in the number of vehicles servicing applicant’s business.
The Eugene City’s Senior Transportation Analyst, Gary McNeel, questioned the long range
impact of the permit. Approval of the permit would extend the life of this operation, at current
levels, beyond the horizon of the regional transportation model. Therefore, future impacts are
unknown and were not assessed as part of this review.
But, because no increase in product delivery or service is associated with the applicant’s
proposed use of the expansion area, we find that Metro area transportation facilities will not be
significantly affected as a result of approval of the application.
Therefore, we find that approval of the application is consistent with the intent and purpose of
Goal 12.
Statewide Planning Goal 13
To conserve energy
We find that the proposed use of the expansion area will provide a continued stable and long-
term source of sand and gravel aggregate material proximate to the Metro area market it serves.
From an energy conservation perspective, an aggregate mining site located within the Metro area
is highly preferable to a supply site located outside the Metro area which requires the
transporting of the material, processed or otherwise, to the Metro area for use. Approval of the
application would result in the establishment of a stable and long-term source of aggregate
material without an increase in energy consumption.
Therefore, we find that approval of the application would be consistent with the intent and
purpose of Goal 13.
Statewide Planning Goal 14
To provide for an orderly and efficient transition from rural to
urban land use.
Only resource use is proposed for the site and no urban facilities or services, other than those
currently provided, are required to support that use.
To the extent that Goal 14 is applicable to this application, we find that approval of the
application would be consistent with its purpose and intent.
Statewide Planning Goal 15
To protect, conserve, enhance and maintain the natural, scenic,
historical, agricultural, economic and recreational qualities of
lands along the Willamette River as the Willamette River
Greenway.
The subject property is not located within the Willamette River Greenway. Accordingly,
Goal 15 is not applicable.
Statewide Planning Goal 16, 17, 18, 19
Estuarine Resources, Coastal Shorelines, Beaches and Dunes, and Ocean Resources)
(
Ordinance - 29
The subject property contains no estuarine resources, shorelines, beaches, dunes, or ocean
resources. Accordingly, Goals 16, 17, 18, and 19 are not applicable.
Adoption of the amendment must not make the Metro Plan
internally inconsistent.
Neither the Eugene Code nor the Metro Plan has been amended to adopt procedures and
requirements consistent with the Goal 5 Rule for the consideration of PAPAs regarding the
designation of significant aggregate sites or specific criteria regarding the consideration of a
PAPA proposing to add a site to the Metro Plan’s acknowledged list of significant aggregate
sites. Therefore, only the provisions of the Goal 5 Rule are directly applicable to Eugene’s
consideration of this application. Metro Plan goals and policies and land use regulations of Lane
County and the City of Eugene are not applicable to this application.
The Land Use Board of Appeals has recently discussed OAR 660-023-0180’s comprehensive
regulatory scheme that is intended to supersede local land use laws and policies. Based on
LUBA’s decision in Eugene Sand and Gravel Inc. v. Lane County, 44 Or LUBA 50, rev’d in
part on other grounds, 189 Or App 21, 74 P3d 1085 (2003), it appears that LUBA believes the
City is prohibited from considering or applying Metro plan policies that go beyond OAR 660-
023-0180 in reviewing this proposal. Since these findings have identified other bases for denial
of the proposal, the City does not address the Metro Plan policies. However, it is not clear to the
City that the Goal 5 rule absolutely prohibits the City from doing so.
Ordinance - 30
ATTACHMENT C
ORDINANCE 2
ORDINANCE NO. ___________
AN ORDINANCE DENYING PROPOSAL TO AMEND THE EUGENE-
SPRINGFIELD METROPOLITAN AREA GENERAL PLAN (METRO
PLAN) TO REVISE THE GOAL 5 SIGNIFICANT MINERAL AND
AGGREGATE RESOURCES INVENTORY AND REDESIGNATE FROM
“AGRICULTURE” TO “SAND & GRAVEL; AND PROVIDING AN
EFFECTIVE DATE.
The City Council of the City of Eugene finds that:
A.
In August 2005, application No. PA 05-6151 was made to Lane County for a
Type II Metro Plan Amendment to add property located outside the Metro Plan UGB and within
the Metro Plan Boundary to the Metro Plan Goal 5 Inventory of Significant Mineral &
Aggregate Sites, to change the Metro Plan designation for that property from “Agriculture” to
“Sand & Gravel” and to concurrently rezone that property in the County’s Rural Comprehensive
Plan.
B.
Sections 9.7700 through 9.7750 of the Eugene Code, 1971 (“EC”) set forth
procedures for amendment of the Metro Plan. Pursuant to the procedures described at EC
9.7730(2)(b), the Board of Commissioners of Lane County referred the above-described
application to the City Council of the City of Eugene for City action on the proposed Metro Plan
amendments.
C.
The Eugene Planning Commission reviewed the proposal with the Lane County
Planning Commission in public hearings on November 15, 2005 and January 25, 2006,
deliberated jointly on July 25, and August 30, 2006 and the matter was forwarded to the City
Council and Board with formal Planning Commission recommendations.
D.
The City Council has conducted a public hearing and is now ready to take action.
NOW, THEREFORE,
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1.
The Metro Plan amendments proposed by application No. PA 05-6151 (Lane
County) is hereby denied.
Section 2.
This Ordinance shall become effective 30 days from its adoption by the City
Council and approval of Mayor, as provided in the Eugene Charter of 2002, or upon adoption of
an identical action by the Board of Commissioners of Lane County, whichever date is later.
Ordinance - 1
Passed by the City Council this Approved by the Mayor this
____ day of ____________, 2008 ____ day of _______________, 2008
___________________________ _______________________________
City Recorder Mayor
Ordinance - 2
Exhibit A to Eugene Ordinance No. __________
FINDINGS OF FACT AND CONCLUSIONS OF LAW
GENERAL FINDINGS AND CONCLUSIONS:
Delta Sand and Gravel Company is requesting approval of Eugene-Springfield Metropolitan
Comprehensive Plan (Metro Plan) amendments to add 72.31 acres of its property to the Goal 5
Significant Aggregate Site Inventory of the Metro Plan and to re-designate that land from
Agriculture to Sand and Gravel. In addition to these Metro Plan amendments, Lane County is
also considering the applicant’s related request to rezone the subject property from Exclusive
Farm Use to Sand, Gravel and Rock Products. The subject property contains 72.31 acres and is
located adjacent to the existing Delta mining and processing facility. The property is adjacent to,
but outside of, the Eugene-Springfield Urban Growth Boundary and is located within the Metro
Plan boundary. The proposed plan amendments and rezone will allow Delta Sand and Gravel
Company to expand its aggregate mining site onto its adjacent property (the proposed expansion
area that is the subject of this request).
METRO PLAN AMENDMENT
OAR 660-023-0180 is the Oregon Statewide Planning Goal 5 Rule regarding aggregate
resources. OAR 660-023-0180(9) provides that if local governments have not amended their
comprehensive plans and land use regulations to include procedures and requirements consistent
with the Goal 5 Rule for the consideration of post-acknowledgement plan amendments (PAPAs)
regarding aggregate resources, the procedures and requirements of the Goal 5 Rule shall be
directly applicable to a local government consideration of a PAPA. Therefore, Metro Plan, Lane
Code and Eugene Code land use regulations related to PAPAs regarding aggregate resources are
not applicable to this application. The Land Use Board of Appeals decision in Morse Bros. v.
Columbia County, 37 Or LUBA 85 (1999) supports the conclusion that OAR 660-023-0180(9)
preempts the application of local comprehensive plan amendment to such PAPAs until the local
comprehensive plan and land use regulations have been amended to comply with the Goal 5
Rule.
The Metro Plan has not been amended to adopt procedures and requirements consistent with the
Goal 5 Rule for the consideration of such PAPAs. The Lane Code and the Eugene Code do not
contain specific criteria regarding the consideration of a PAPA proposing to add a site to the
Metro Plan’s acknowledged list of significant aggregate sites and have not been amended to
conform to the requirements of the Goal 5 Rule through periodic review. Therefore, only the
provisions of the Goal 5 Rule shall be directly applicable to Eugene and Lane County’s
consideration of this application.
METRO PLAN AMENDMENT CRITERIA AND FINDINGS
The subject property is within the Metro Plan boundary and outside of the Eugene-Springfield
Urban Growth Boundary. The application requests an amendment to the Metro Plan diagram
which is a Type II Metro Plan amendment. The application constitutes a citizen-initiated Type II
Metro Plan amendment.
Eugene Code 9.7730(3) - Approval Criteria
Ordinance - 3
(3) Criteria for Approval of Plan Amendment. The following
criteria shall be applied by the city council in approving or
denying a Metro Plan amendment application:
(a) The amendment must be consistent with the relevant
Statewide Planning Goals adopted by the Land Conservation and
Development Commission; and
(b) Adoption of the amendment must not make the Metro Plan
internally inconsistent.
These findings begin, and end, with an analysis of the proposed amendments’ consistency with
Statewide Planning Goal 5, pursuant to EC 9.7730(3)(a).
Statewide Planning Goal 5
To conserve open space and protect natural and scenic resources.
There has previously been a legislative determination by the Metro Plan jurisdictions that no
Goal 5 resources exist on subject site except wetlands, which are addressed in these findings.
The subject property has not been included in any inventory of needed open space or scenic areas
defined by Goal 5, nor has it been identified in the Metro Plan as having any historic, cultural or
natural resources which need to be preserved and/or protected.
With respect to wetlands, EGR & Associates, Inc., in its Evaluation of Aggregate Resources
attached to the application, determined that there is a wetland located within the meander scar
(aka East Santa Clara Waterway) along the northwest boundary of the subject property. This
wetland does not extend beyond the eastern bank of the meander scar and lies within the required
150-foot mining setback from the property boundary. Avoidance of wetlands in areas not
covered by existing DOGAMI Mining Permits and will be accomplished by limiting mining
operations to areas outside the applicable setbacks from the expansion property boundary,
according to draft County-imposed conditions of approval (see staff report for November 1, 2006
public hearing, Attachment 1, Exhibit C: Lane County draft Ordinance No. PA 1238, Conditions
Necessary to Minimize Conflicts). All wetland area within the 150’ setback shall be exempted
from the administrative variance and the construction of the aquaclude would occur outside of
the wetland area. Two excavated ponds are located in the southern portion of the site, which
were previously used in aggregate extraction and are currently covered by DOGAMI permits,
and thus exempt from wetland regulation. (Exhibit 1, Exhibit E)
The Goal 5 Administrative Rule for mineral and aggregate resources specifically addresses other
Goal 5 resources and limits considerations of conflict to “Goal 5 Resource Sites” that have been
identified in the Metro Plan. The applicant claims that the subject property contains a significant
mineral resource site of the quantity and quality that establish the subject property as for
aggregate purposes pursuant to Goal 5 and the Oregon Administrative Rules implementing Goal
5. The administrative rules recognize that significant aggregate resources may be mined in areas
that contain other Goal 5 resources. The potential of such conflicts has been reviewed according
to the Goal 5 rule.
The City of Eugene finds that the applicant failed to show that the site’s aggregate resources
were significant pursuant to Goal 5 and the Oregon Administrative Rules implementing Goal
5; therefore, the application to list the site as a Goal 5 resource is denied. This action is
consistent with Goal 5 and the rules that implement it as shown below.
Ordinance - 4
Step 1 Determine if the PAPA information is adequate
OAR 660-023-0180(8) -- In order to determine whether information in a PAPA submittal
concerning an aggregate site is adequate, local government shall follow the requirements of
this section rather than OAR 660-023-0030(3). An application for approval of an aggregate
site following sections (4) and (6) of this rule shall be adequate if it provides sufficient
information to determine whether the requirements in those sections are satisfied. An
application for a PAPA concerning a significant aggregate site following sections (3) and (5)
of this rule shall be adequate if it includes:
The application at issue is for a PAPA concerning a significant aggregate site following OAR
660-023-0180(3) and (5). The applicant does not seek approval following sections (4) or (6).
Therefore, sections (a) through (e), below, apply.
(a) Information regarding quantity, quality, and location sufficient to determine
whether the standards and conditions in section (3) of this rule are satisfied;
The application includes information regarding quantity, quality, and location. The applicant has
provided an analysis of the aggregate resource, conducted by EGR & Associates, Inc. (EGR).
See File Record No.1, Original Delta application, including EGR document dated June 2005:
Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area, which is Exhibit E
in the 12 August 2005 application by Delta for a zoning change entitled “Application for
amendment of the Eugene-Springfield metropolitan comprehensive plan map and significant
aggregate resource site inventory and zone change from EFU to sand gravel and rock products”.
Supplemental information was presented by the applicant, EGR, and other persons during the
public hearings before the Planning Commission and City Council. The Eugene Planning
Commission found unanimously that there was adequate information submitted in the PAPA
application.
The City Council finds that the information provided by the applicant provides an adequate basis
for determining whether or not the standards and conditions in OAR 660-023-0180(3) are
satisfied.
(b) A conceptual site reclamation plan;
The applicant provided a conceptual reclamation plan to reflect its proposal to amend its existing
reclamation plan, approved by DOGAMI in 1987 and 1995. See File Record No.1, Original
Delta application, including Operating and Reclamation Plan, which is Exhibit J in the 12 August
2005 application by Delta for a zoning change entitled “Application for amendment of the
Eugene-Springfield metropolitan comprehensive plan map and significant aggregate resource
site inventory and zone change from EFU to sand gravel and rock products”. See also File
Record No. 17 and Exhibit 49.
The City Council finds that the reclamation plan provided by the applicant satisfies this
requirement.
(c) A traffic impact assessment within one mile of the entrance to the mining area
pursuant to section (5)(b)(B) of this rule;
Ordinance - 5
For significant aggregate sites (addressed below), Section OAR 660-023-180(5)(b)(B) requires
analysis of “[p]otential conflicts to local roads used for access and egress to the mining site
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.”
The applicant’s material indicates that the traffic volumes and location of ingress and egress will
not change from current operations, and identifies the local roads to be used for access and
egress. The applicant did not provide a traffic study, as the applicant maintains that there will be
no additional impact over current operations.
The City notes that Lane Code 15.697(1) requires that a traffic impact analysis may be required
for any plan amendment proposal, unless waived by the County Engineer as specified in Lane
Code 15.697(2). Lane Code 15.697(2) provides that the County Engineer may waive traffic
impact analysis requirements specified in LC 15.697(1) when, in the case of a plan amendment,
the scale and size of the proposal is insignificant, eliminating the need for detailed traffic
analysis of the performance of roadway facilities for the 20-year planning horizon. Lane Code
15.697(2)(b) provides that, generally, a waiver to Traffic Impact Analysis will be approved when
the plan designation that results will be entirely a resource designation or there is adequate
information for the County Engineer to determine that a transportation facility is not significantly
affected as defined in Lane County Transportation System Plan Policy 20-d. The County
Engineer waived Lane County’s requirement for a traffic impact analysis because the County
made the determination that the above provisions for a waiver were met.
The City of Eugene’s Senior Transportation Analyst opined that a traffic impact analysis would
be helpful to assess the impacts of temporal extension of operations that would be permitted by
expanding the mining site, thereby also expanding the amount of aggregate materials to be
excavated over a longer period of time (See Exhibit 29). However, the City does not find that
this information is necessary to assess the potential conflicts pursuant to OAR 660-023-
180(5)(b)(B).
The City Council finds that, since approval of the application would result in the Metro Plan
diagram designation of the subject property being changed from one resource designation
(“Agriculture”) to another (“Sand and Gravel”) and since the applicant asserts that approval of
the application will not result in any additional traffic on any local roads and, consequently, will
not significantly affect any transportation facility, the information provided, taken together, is an
adequate basis for the City to assess traffic impacts.
(d) Proposals to minimize any conflicts with existing uses preliminarily identified by
the applicant within a 1,500 foot impact area; and
The applicant has provided proposals to minimize conflicts with existing uses within a 1500 foot
impact area. See File Record No.1, Original Delta application, Introduction, in the 12 August
2005 application by Delta for a zoning change entitled “Application for amendment of the
Eugene-Springfield metropolitan comprehensive plan map and significant aggregate resource
site inventory and zone change from EFU to sand gravel and rock products,” which contains the
following consultants reports: Report on Noise Study (Daly-Standlee & Associates, Inc.)
(hereinafter referred to as “Daly-Standlee”) (Exhibit F); Air Quality Evaluation (Bridgewater
Group, Inc., hereinafter referred to as “Bridgewater”) (Exhibit G); Flood Impact Evaluation
(EGR & Associates, Inc., hereinafter referred to as “EGR”)(Exhibit H); and Digital Model-
Groundwater (EGR) (Exhibit I). Proposals to minimize conflicts with existing uses preliminarily
Ordinance - 6
identified by the applicant within a 1,500 foot impact area were incorporated into draft
conditions of approval by Lane County ((see staff report for November 1, 2006 public hearing,
Attachment 1, Exhibit C: Lane County draft Ordinance No. PA 1238, Conditions Necessary to
Minimize Conflicts).
The City Council finds that this requirement has been satisfied.
(e) A site plan indicating the location, hours of operation, and other pertinent
information for all proposed mining and associated uses.
The application includes a site plan indicating the location, hours of operation, and other
pertinent information for all proposed mining and associated uses. See File Record No.1,
Original Delta application, Introduction, in the 12 August 2005 application by Delta for a zoning
change entitled “Application for amendment of the Eugene-Springfield metropolitan
comprehensive plan map and significant aggregate resource site inventory and zone change from
EFU to sand gravel and rock products.”
Based on the findings, above, the City Council finds that the application contains adequate
materials to satisfy OAR 660-023-0180(8).
OAR 660-023-180(2)(b) -- Local governments shall apply the criteria in section (3) or (4) of
this rule, whichever is applicable, rather than OAR 660-023-0030(4), in determining whether
an aggregate resource site is significant.
The applicant submitted information to address OAR 660-023-180(3). The criteria in OAR 660-
023-180(4) are not applicable.
Step 2 Determine if the resource site is significant
OAR 660-023-180(3) -- An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource demonstrates that the
site meets any one of the criteria in subsections (a) through (c) of this section, except as
provided in subsection (d) of this section:
Above, the City finds that the applicant provided adequate information for evaluating the
significance of the resource.
Based on these findings, the Council determines that the applicant has not met its burden of
proof to establish that the aggregate resource meets the “significance” requirements of OAR 660-
023-0180(3) regarding quantity and quality of the aggregate resource.
The Council evaluated the aggregate resource in accordance with OAR 660-023-0180(3), the
pertinent parts of which follow:
(3) An aggregate resource site shall be considered significant if adequate
information regarding the quantity, quality, and location of the resource demonstrates
that the site meets any one of the criteria in subsections (a) through (c) of this section,
except as provided in subsection (d) of this section:
(a)A representative set of samples of aggregate material in the deposit on the
site meets applicable Oregon Department of Transportation (ODOT) specifications for
Ordinance - 7
base rock for air degradation, abrasion, and soundness, and the estimated amount of
material is more than 2,000,000 tons in the Willamette Valley, or more than 500,000 tons
outside the Willamette Valley;
(b)***
(c)***
(d)Notwithstanding subsections (a) and (b) of this section, except for an
expansion area of an existing site if the operator of the existing site on March 1, 1996,
had an enforceable property interest in the expansion area on that date, an aggregate
site is not significant if the criteria in either paragraphs (A) or (B) of this subsection
apply:
(A) More than 35 percent of the proposed mining area consists of soil
classified as Class I on Natural Resource and Conservation Service
(NRCS) maps on June 11, 2004; or
(B) More than 35 percent of the proposed mining area consists of soil
classified as Class II, or of a combination of Class II and Class I or
Unique soil, on NRCS maps available on June 11, 2004, unless the
average thickness of the aggregate layer within the mining area exceeds:
3. 60 feet in Washington, Multnomah, Marion, Columbia, and Lane counties;
(a) A representative set of samples of aggregate material in the deposit on
the site meets applicable Oregon Department of Transportation (ODOT)
specifications for base rock for air degradation, abrasion, and soundness,
and the estimated amount of material is more than 2,000,000 tons in the
Willamette Valley, or more than 500,000 tons outside the Willamette Valley;
The applicant submitted evidence and argument to address compliance with OAR 660-023-0180
(3), subsections (a) and (d)(B). These findings evaluate the sufficiency of that evidence and
argument. The record contains expert geologic testimony on both sides of these issues. The
applicant’s analysis was provided by EGR and Associates (EGR). State rules for testing refer to
the American Society for Testing and Materials (ASTM) and American Association of State
Highway and Transportation Officials (AASHTO) manuals. The AASHTO-ASTM Standard
Practice for Sampling Aggregates language describes the sampling protocol for roadside or bank
run sand and gravel deposits under Appendix D75, section X2.3.2.
The applicant’s analysis was reviewed by Mark H. Reed, Ph.D., Mineral Resource Geologist and
Department Head of the Department of Geological Sciences, University of Oregon, who
provided testimony to the contrary. Dr. Reed received his Masters of Science degree (1974) and
doctorate degree (1977) from the University of California at Berkeley. In addition to 23 years as
an Assistant and Associate professor at the University, his postgraduate employment includes
three years (1977-1979) as a full time geologist for the Anaconda Copper Company, Butte
Montana. His experiences with the mining company included drilling, sampling, surveying,
assaying, and geophysical logging. Dr. Reed has a long list of professional affiliations, short
courses, publications, and abstracts, and has provided written testimony in over 15 cases. The
Eugene City Council finds Dr. Reed to be a credible witness.
The report of applicant’s geologic consultant EGR (Exhibit 1,Original Delta application,
including Exhibit E from EGR: Evaluation of Aggregate Resources: Delta Sand and Gravel
Expansion Area, Section 2.3), states that more than 35% of the proposed mining area consists of
Class II soils. The Council agrees with the specific part of EGR’s report that characterizes the
Ordinance - 8
type of agricultural soils present on the proposed site. The Council hereby finds that more than
35% of the proposed mining area consists of Class II soils. Thus, the requirement of OAR 660-
023-0180(3)(d)(B)(i) applies to this application and requires that the average thickness of the
aggregate layer exceed 60 feet.
As is explained in more detail below, the Council finds that the applicant has failed to meet its
burden of establishing that there is an aggregate layer with an average thickness of 60 feet that is
comprised of aggregate meeting the applicable Oregon Department of Transportation (ODOT)
specifications for base rock.
The Council also finds that EGR’s Exhibit 1,Original Delta application, including Exhibit E
from EGR: Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area (e.g. p.
5- 8 and 11-13, Figures 7, 8, and 9), Appendix E well logs and table, and related materials,
establish that there are two contiguous, but distinct, layers of sand and gravel, in the expansion
area. These layers consist of an upper layer (“younger alluvium”) and a lower layer (“older
alluvium”). Based on that information, however, we also find that neither of these individual
layers is 60 feet thick.
For the reasons stated herein, the Council finds that the applicant has failed to provide a
“representative set of samples of aggregate material in the deposit” sufficient to demonstrate the
quality of the aggregate for either layer. Instead, the applicant’s information as to aggregate
quality is based on the use of mixed samples that combine materials from the two distinct
geologic layers before testing the quality of the aggregate. This mixing of aggregate from distinct
layers before testing makes it impossible for the Council to determine that there is a layer of
aggregate of the required quality, and of sufficient thickness, sufficient to satisfy the rule.
The conclusion that the aggregate samples described by EGR (Exhibit 1,Original Delta
application, including Exhibit E from EGR: Evaluation of Aggregate Resources: Delta Sand and
Gravel Expansion Area; and
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed & M. Kupilas
including original samples and re-sampling of boreholes),
regarding significance of the resource,
and relied upon by the applicant, do not constitute the “representative set of samples of aggregate
material on the site”, as required by subsection (3)(a) of the rule, is based, in part, on the
definitions and principles of representative sampling of sand and gravel and other aggregate
deposits as laid out in the sampling standards of the ASTM (American Society for Testing and
Materials) Designation D75-97 (especially sections 3.1, X2.2.2, and X2.3.2), AASHTO
(American Association of State Highway and Transportation Officials) Standard No.T2 (sections
as for ASTM), and ACE (Army Corps of Engineers) Handbook for Concrete and Cement
Chapter CDR-C 100-75 (especially sections 3.3, 4.1, 4.3, and 5.1), sampling standards as cited in
the written and oral testimony of University of Oregon professor of resource geology Mark Reed
(
Exhibit 33 – Testimony of Concerned Santa Clara Residents on Delta Mining Expansion Proposal;
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed & M. Kupilas regarding significance of the
resource,; Exhibit 62 – Response to EGR’s assertion of significance of the resource from M Reed; Exhibit
65 – Rebuttal to applicant from Doug DuPriest, attorney; Exhibit 66 – Applicant’s final rebuttal to
Planning Commissions; Exhibits 262 and 272 – testimony from Mark Reed; and Exhibit 274 –from Doug
This conclusion is further based on the arguments in these exhibits
DuPriest w/attachments).
concerning the application of the ASTM, AASHTO and ACE standards, including Delta’s
departure from these standards by testing: (1) samples composed by mixing material from the
two separate layers of sand and gravel (the upper and the lower layers), and (2) samples that do
not include the full vertical extent of material in each of the separate layers.
The Council has considered oral and written arguments on sampling made by Delta geologic
consultant EGR (including but not limited to
Exhibit 55 – EGR & Associates Inc. rebuttal to M. Reed
Ordinance - 9
& M. Kupilas regarding significance of the resource; and Exhibit 66 – Applicant’s final rebuttal to
). This consideration also includes EGR’s references to subsections of the
Planning Commissions
ASTM, AASHTO and ACE standards that pertain to bulk sampling of material that is already
mined and processed, as opposed to sampling of unprocessed aggregate in the ground. The
Council finds that EGR’s sampling methodology, that mixed two distinct layers of sand and
gravel, and that is based on principles for sampling of processed gravel (instead of unprocessed
aggregate), does not yield “a representative set of samples of aggregate material in the deposit on
the site” as specified by OAR 660-023-0180(3)(a). In reaching this conclusion, the Council
relies, in part, on the analysis contained in the Reed testimony and letters (including but not
limited to
Exhibit 33 – Testimony of Concerned Santa Clara Residents on Delta Mining Expansion
Proposal; Exhibit 62 – Response to EGR’s assertion of significance of the resource from M Reed; Exhibit
65 – Rebuttal to applicant from Doug DuPriest, attorney; Exhibits 262 and 272 – testimony from Mark
) in support of this conclusion.
Reed; and Exhibit 274 –from Doug DuPriest w/attachments
Since the Council finds that the set of samples obtained and tested by the applicant was not
representative of the aggregate material in the deposit, and the applicant has failed to provide
adequate information to otherwise characterize that aggregate material, it is immaterial, for
purposes of this decision, whether the samples collected comply with ODOT’s base rock
specifications.
Some persons speaking in support of this application suggested that, because the applicant has
operated a gravel operation on nearby land for many years, the proposed site somehow meets the
quality and quantity standards in the rule. The Council finds that this position is mistaken, for
several reasons. The applicable rule expressly requires the applicant to demonstrate, by use of
proper sampling and analysis, that the proposed new or expanded site meets specific quality,
quantity and location requirements. Proponent’s suggestion incorrectly assumes what the rule
requires be proved. Past operation of an aggregate business on nearby land is not equivalent to,
or a substitute for, the required testing and demonstration. OAR 660-023-0180(3) requires testing
of the proposed new or expanded site; the quality, quantity and location of aggregate on a nearby
property is not at issue. This contention regarding prior, nearby aggregate use also appears to
mistakenly assume or imply that the nature and extent of aggregate material from the old pit
meets current standards. In addition to being irrelevant, such evidence is absent from the record.
The purpose of these OAR aggregate standards is to ensure that an adequate depth and volume of
high quality aggregate is present in a potential new or expanded site before it is converted from
high quality agricultural land to aggregate use. Here, the applicant’s sampling methodology was
based, in part, on methodology appropriate for testing processed, instead of unprocessed,
aggregate. The applicant failed to provide samples of the full vertical extent of the aggregate
layers. The applicant has failed to provide a representative set of samples of each layer. By
mixing of material from distinct layers prior to testing, it is impossible to know the composition
of the individual layers of aggregate. Without knowing the composition of the individual layers,
and without a representative set of samples, it is not possible to determine whether the aggregate
deposit meets the standards of OAR 660-023-0180(3). For these reasons, the Council concludes
that the applicant has failed to demonstrate compliance with the requirements of OAR 660-023-
0180(3).
The estimated quantity of the resource must exceed 2 million tons to satisfy this aspect of the
criterion, since the site is located in the Willamette Valley. The applicant’s report concludes that
there is over 6 million cubic tons of material, and possibly more than 9 million cubic tons of
material, present beneath the expansion site, an amount well in excess of the 2 million ton
requirement. DOGAMI, while acknowledging that resource evaluation is not typically part of
the function of the Mined Lands Regulation and Reclamation Division, estimates the resource to
Ordinance - 10
be over 15 million tons on the 53 acre site. DOGAMI based their estimate on EGR’s assumed
aggregate resource depth of 82 feet, not the 51.5 foot depth observed by DOGAMI on the site.
DOGAMI estimates did not subtract silt and clay occurrences, which, DOGAMI writes, may not
represent separate layers and may be treated as internal waste in the production phase. By not
subtracting the silt and clay occurrences, the Council concludes that the applicant has failed to
demonstrate compliance with the requirements of OAR 660-023-0180(3)(a). (
Exhibit 144 –
DOGAMI geologist review of onsite aggregate deposit)
(b) The material meets local government standards establishing a lower threshold for
significance than subsection (a) of this section; or
Neither the City nor the County has established a lower threshold for significance. Therefore,
this section does not apply.
(c) The aggregate site was on an inventory of significant aggregate sites in an
acknowledged plan on September 1, 1996.
The expansion area was not on an inventory of significant aggregate sites on September 1, 1996.
Therefore, this section does not apply.
(d) Notwithstanding subsections (a) and (b) of this section, except for an expansion
area of an existing site if the operator of the existing site on March 1, 1996, had an
enforceable property interest in the expansion area on that date, an aggregate site is
not significant if the criteria in either paragraphs (A) or (B) of this subsection apply:
Because the City Council has found that the application does not satisfy sections (a) or (b),
findings under section (d) are superfluous. Nonetheless, to provide a complete evaluation of the
application, the City provides the finding that the applicant has not shown that the operator of the
existing site (Delta Property Company/Delta Sand and Gravel Company) did not have an
enforceable property interest in the expansion area on March 1, 1996. See Exhibit 1, original
Delta application dated August 12, 2005.
(A) More than 35 percent of the proposed mining area consists of soil classified
as Class I on Natural Resource and Conservation Service (NRCS) maps on
June 11, 2004; or
The proposed mining area does not include any Class I soil. See Exhibit 1, original Delta
application page 11, and including Exhibit E, EGR document dated June 2005, Evaluation of
Aggregate Resources: Delta Sand and Gravel Expansion Area.
(B) More than 35 percent of the proposed mining area consists of soil classified as Class II, or
of a combination of Class II and Class I or Unique soil, on NRCS maps available on June 11,
2004, unless the average thickness of the aggregate layer within the mining area exceeds . . .
60 feet in . . . Lane count[y].
The applicant’s report shows that more than 35 percent of the proposed expansion mining area
consists of Class II soils. See Exhibit 1, original Delta application page 11, and Figure 6 in
Exhibit E, EGR document dated June 2005: Evaluation of Aggregate Resources: Delta Sand and
Gravel Expansion Area.
Ordinance - 11
The EGR report estimates that the average thickness of the aggregate layer in that area is 70.5
feet; however, DOGAMI evaluation observed only 51.5 feet depth (see Exhibit 144). The
Council also finds that EGR’s Exhibit A (e.g. p. 5- 8 and 11-13, Figures 7, 8, and 9, Appendix E
well logs and table), and related materials, establish that there are two contiguous, but distinct,
layers of sand and gravel, in the expansion area. These layers consist of an upper layer (“younger
alluvium”) and a lower layer (“older alluvium”). The EGR report also acknowledges that layers
of mudflow/clay from 4 to 12 fee thick have been experienced on the existing excavation site and
are encountered along the pit wall (see also in Exhibit 1, EGR’s Exhibit A (e.g. p. 5- 8 and 11-
13, Figures 7, 8, and 9, and Boring Log of pit wall) and Exhibit 216). Based on that information,
we also find that neither of these individual layers of aggregate is 60 feet thick. Therefore, OAR
660-023-180(3)(d)(B) applies.
In summary, even if the proposed expansion site satisfied the significance criteria of OAR 660-
023-180(3)(a), because section (3)(d)(B) applies to the site, the site would not be significant.
Goal 5 Conclusion. The City finds that, for the reasons stated above the application is
inconsistent with Statewide Planning Goal 5. As such, there is no need or requirement that the
City to provide further analysis.
Ordinance - 12
ATTACHMENT D
Ordinance 3
ORDINANCE NO. ___________
AN ORDINANCE AMENDING THE EUGENE-SPRINGFIELD
METROPOLITAN AREA GENERAL PLAN (METRO PLAN) TO REVISE
THE GOAL 5 SIGNIFICANT MINERAL AND AGGREGATE
RESOURCES INVENTORY AND TO REDESIGNATE LAND FROM
“AGRICULTURE” TO “SAND & GRAVEL”; ADOPTING SAVINGS
AND SEVERABILITY CLAUSES; AND PROVIDING AN EFFECTIVE
DATE.
The City Council of the City of Eugene finds that:
A.
In August 2005, application No. PA 05-6151 was made to Lane County for a
Type II Metro Plan Amendment to add property located outside the Metro Plan UGB and within
the Metro Plan Boundary to the Metro Plan Goal 5 Inventory of Significant Mineral &
Aggregate Sites, to change the Metro Plan designation for that property from “Agriculture” to
“Sand & Gravel” and to concurrently rezone that property in the County’s Rural Comprehensive
Plan.
B.
Sections 9.7700 through 9.7750 of the Eugene Code, 1971 (“EC”) set forth
procedures for amendment of the Metro Plan. Pursuant to the procedures described at EC
9.7730(2)(b), the Board of Commissioners of Lane County referred the above-described
application to the City Council of the City of Eugene for City action on the proposed Metro Plan
amendments.
C.
The Eugene Planning Commission reviewed the proposal with the Lane County
Planning Commission in public hearings on November 15, 2005 and January 25, 2006,
deliberated jointly on July 25, and August 30, 2006 and the matter was forwarded to the City
Council and Board with formal Planning Commission recommendations.
D.
Evidence exists within the record indicating that the proposal meets the
requirements of Chapter 9 of the Eugene Code, 1971, and the requirements of applicable state
and local law.
E.
The City Council has conducted a public hearing and is now ready to take action.
NOW, THEREFORE,
THE CITY OF EUGENE DOES ORDAIN AS FOLLOWS:
Section 1.
The subject site, consisting of, tax lots 3600, 3601, and 3700 of map 17-04-
12-00; tax lot 3600 of map 17-04-12-20; tax lots 5600, 6200, and a portion of 100 of map 17-04-
12-31; and tax lots 300, 400 and a portion of 600 of map 17-04-12-40; shall be added to the
Metro Plan Inventory of Significant Mineral and Aggregate Sites. based on findings and
conclusions as described in Exhibit “B” attached and incorporated herein.
Ordinance - 1
Section 2.
The Eugene/Springfield Metropolitan Area General Plan is amended by the
redesignation of tax lots 3600, 3601, and 3700 of map 17-04-12-00; tax lot 3600 of map 17-04-
12-20; tax lots 5600, 6200, and a portion of 100 of map 17-04-12-31; and tax lots 300, 400 and a
portion of 600 of map 17-04-12-40; from “Agriculture” to “Sand and Gravel”, such territory
depicted on the Eugene Springfield Metro Plan Diagram and further identified on Exhibit “A”
attached and incorporated herein.
Section 3.
Although not a part of this Ordinance except as described above, the Findings
and Conditions as set forth in Exhibit “B” attached, are adopted in support of this action.
Section 4.
The prior designation and zone repealed by this Ordinance shall remain in full
force and effect to authorize prosecution of persons in violation thereof prior to the effective date
of this Ordinance.
Section 5.
If any section, subsection, sentence, clause, phrase or portion of this
Ordinance is for any reason held invalid or unconstitutional by any court of competent
jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and
such holding shall not affect the validity of the remaining portions hereof.
Section 6.
Identical amendments to the Metro Plan have been adopted by the Board of
Commissioners of Lane County. This Ordinance shall become effective 30 days from its
adoption by the City Council and approval of Mayor, as provided in the Eugene Charter of 2002.
Passed by the City Council this Approved by the Mayor this
____ day of ____________, 2008 ____ day of _______________, 2008
___________________________ _______________________________
City Recorder Mayor
Ordinance - 2
Exhibit B to Eugene Ordinance No. __________
FINDINGS OF FACT AND CONCLUSIONS OF LAW
for
A EUGENE-SPRINGFIELD METROPOLITAN COMPREHENSIVE PLAN AMENDMENT
AMENDING THE PLAN DIAGRAM DESIGNATION OF AGRICULTURE TO SAND AND
GRAVEL AND AMENDING THE PLAN GOAL 5 SIGNIFICANT AGGREGATE SITE
INVENTORY TO INCLUDE THE SUBJECT PROPERTY AS A SIGNIFICANT
AGGREGATE RESOURCE SITE
FOR 72.31 ACRES LOCATED IN LANE COUNTY AND IDENTIFIED AS TAX LOTS 3600,
3601 AND 3700 OF LANE COUNTY ASSESSOR’S MAP NO. 170412; TAX LOT 3600 OF
LANE COUNTY ASSESSOR’S MAP NO. 1704122; TAX LOTS 5600 AND 6200 AND A
PORTION OF 100 OF LANE COUNTY ASSESSOR’S MAP NO. 17041231; AND TAX LOTS
300, 400 AND A PORTION OF 600 OF LANE COUNTY ASSESSOR’S MAP NO. 17041240
Ordinance - 4
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The following findings and conclusions were originally adopted by Lane County in support of
the applicant's four land use requests, listed below under "Description of Proposed
Amendments." The City's jurisdiction extends only to the first two of the applicant's requests
(amendment of the Metro Plan diagram and the Metro Plan Goal 5 Significant Aggregate Site
Inventory). Therefore, portions of these findings may not apply to the City's decision. Further,
where appropriate, references to the County should be interpreted as references to the City.
In support of our adoption and enactment of Ordinance No. PA 1238, we make the following
findings of fact and conclusions of law.
GENERAL FINDINGS AND CONCLUSIONS:
Delta Sand and Gravel Company is requesting approval of Eugene-Springfield Metropolitan
Comprehensive Plan (Metro Plan) amendments to add 72.31 acres of its property to the Goal 5
Significant Aggregate Site Inventory of the Metro Plan and to re-designate that land from
Agriculture to Sand and Gravel. The subject property would also be rezoned from Exclusive
Farm Use to Sand, Gravel and Rock Products in tandem with approval of the Metro Plan
amendments. The subject property contains 72.31 acres and is located adjacent to the existing
Delta mining and processing facility. The property is adjacent to the Eugene Urban Growth
Boundary and is located within the Metro Plan boundary. The proposed plan amendments and
rezone will allow Delta Sand and Gravel Company to expand its aggregate mining site onto its
adjacent property (the proposed expansion area that is the subject of this request).
Delta Sand and Gravel Company is a local, family-owned and operated business that was
founded by brothers Alan and Lee Babb. The Delta Companies and the Delta Sand and Gravel
Company aggregate facility are located on property that has been owned and used by the Babb
family for farming and sand and gravel production since 1927. That property, consisting of
approximately 474 acres of land zoned for sand and gravel production, contains approximately
8,000,000 cubic yards of aggregate material remaining available for extraction, processing and
sale. Delta Sand and Gravel Company estimates that, based upon historical extraction rates, the
remaining available aggregate material on that land will be depleted in 10 years. The company
owns 72 adjacent acres of land, currently zoned Exclusive Farm Use, that is the subject of this
application. Approval of the proposed plan amendment and rezone will allow the company to
add that 72 acres of land to its inventory of aggregate resource and, through the use of that land
for aggregate mining, extend the operational life of Delta Sand and Gravel Company by
approximately 12-15 years.
The Delta Companies employ up to 135 persons annually. In 2004 they paid gross wages of over
$4,750,000 and paid considerable taxes associated with that employment base. With the
approved use of the proposed expansion area Delta Sand and Gravel Company will continue
providing that employment level and will continue to be a significant contributor to the Metro
area economy for many years to come.
Approval of this application will result in a reasonable and logical expansion of an aggregate
materials source on land owned by a locally-owned and operated company and located in an area
currently committed to aggregate production. Approval of this application will also result in the
continued existence of a valuable and long-time contributor to the economic and social well
being of the Metro area.
BACKGROUND INFORMATION
General Site Description
Ordinance - 5
The property (proposed expansion area) that is the subject of this application contains 72.31
acres and is located contiguous to and west of the existing Delta Sand and Gravel Company
aggregate mining site. The property is located outside of the Eugene Urban Growth Boundary
and is located within the Metro Plan boundary. The property is zoned Exclusive Farm Use 30 (E-
30). The property is described as Tax Lots 3600, 3601 and 3700 of Lane County Assessor’s
Map No. 170412; Tax Lot 3600 of Lane County Assessor’s Map No. 1704122; Tax Lots 5600
and 6200 and a portion of 100 of Lane County Assessor’s Map No. 17041231; and Tax Lots 300,
400 and a portion of 600 of Lane County Assessor’s Map No. 17041240; The property is
bounded on the east by the existing Delta Sand and Gravel Company aggregate mining site, on
the west and south by residential land and on the north by residential and agricultural land.
The site is relatively flat and is primarily used for grass production with the exception of
approximately 5.5 acres of shrub nursery on the northeast portion of the property. Three
residential sites with associated outbuildings are located on the property. Two excavated ponds
(used for gravel extraction prior to 1977) are located on the property. A remnant meander scar of
the Willamette River is located on the western boundary of the property.
The overall site slope and drainage is to the northwest toward the abandoned meander scar or
oxbow of the Willamette River. On the southern portion of the property local drainage is
towards the ponds. No seeps or springs have been located on the property. Trees flank the
meaner scar along the western boundary of the property and blackberries are predominant around
the excavated ponds (with the exception of a few small trees at the western end of the ponds).
Description of Proposed Amendments
.
The application before Lane County and the City of Eugene seeks approval of the following:
1. An amendment to the Metro Plan diagram designating the subject property as
Sand and Gravel;
2. An amendment of the Metro Plan Goal 5 Significant Aggregate Site Inventory to
include the subject property as a significant aggregate resource site;
3.A change in the zoning of the subject property from Exclusive Farm Use to Sand,
Gravel & Rock Products;
4. An administrative variance to allow construction of a low permeability barrier
within the setback area pursuant to Lane Code 16.217(4)(b)(v)(dd).
The subject property is located within the Eugene-Springfield Metropolitan Comprehensive Plan
(Metro Plan) boundary and is located outside of the Eugene Urban Growth Boundary.
Applications for amendments to the Metro Plan diagram regarding property located within the
Metro Plan boundary and outside of the Eugene Urban Growth Boundary are filed with Lane
County and require the approval of the City of Eugene and Lane County.
METRO PLAN AMENDMENT -LANE CODE CRITERIA
OAR 660-023-0180 is the Oregon Statewide Planning Goal 5 Rule regarding aggregate resources.
OAR 660-023-0180(9) provides that if local governments have not amended their comprehensive
plans and land use regulations to include procedures and requirements consistent with the Goal 5
Rule for the consideration of post-acknowledgement plan amendments (PAPAs) regarding
aggregate resources, the procedures and requirements of the Goal 5 Rule shall be directly
applicable to a local government consideration of a PAPA. Therefore, Metro Plan, Lane Code and
Eugene Code land use regulations related to PAPAs regarding aggregate resources are not
Ordinance - 6
applicable to this application. The Land Use Board of Appeals decision in
Morse Bros. v. Columbia
, 37 Or LUBA 85 (1999) supports the conclusion that OAR 660-023-0180(9) preempts the
County
application of local comprehensive plan amendment or zone change criteria to such PAPAs until
the local comprehensive plan and land use regulations have been amended to comply with the Goal
5 Rule. Furthermore, the conflicts to be considered by local government are limited by the Goal 5
rule to conflicts with land uses and does not include conflicts with otherwise applicable local
government regulations.
The Metro area jurisdictions have not amended the Metro Plan to adopt procedures and
requirements consistent with the Goal 5 Rule for the consideration of such PAPAs. The Lane Code
and the Eugene Code do not contain specific criteria regarding the consideration of a PAPA
proposing to add a site to the Metro Plan’s acknowledged list of significant aggregate sites and have
not been amended to conform to the requirements of the Goal 5 Rule through periodic review.
Therefore, only the provisions of the Goal 5 Rule shall be directly applicable to Eugene and Lane
County’s consideration of this application.
General Lane Code and Eugene Code provisions for the processing of Metro Plan amendments are
as follows.
Lane Code 12.210 - Initiation of Plan Amendments.
(1) Who Can Initiate Metro Plan Amendments. An amendment
to the Metro Plan can be initiated by the following persons or
entities:
* * * * *
b) Type II Plan Diagram and Site Specific Text Amendments.
* * * * *
(ii) Between the City limits and the Plan Boundary: Any of the three governing
bodies and citizens.
(2) When Plan Amendments Can be Initiated. Amendments to
the Metro Plan shall be initiated and considered at the following
times:
* * * * *
(b) Citizen initiated Type II Metro Plan amendments may be
applied for at any time. The initial public hearing on an
application shall take place within 60 days of acceptance of a
complete application.
The subject property is within the Metro Plan boundary and outside of the Eugene Urban Growth
Boundary. The application requests an amendment to the Metro Plan diagram which is a Type II
Metro Plan amendment. The application constitutes a citizen-initiated Type II Metro Plan
amendment which can be initiated at any time by citizens and can be considered at any time by
the City of Eugene and Lane County.
Lane Code 12.225(2) - Approval Criteria
Ordinance - 7
(2) Criteria for Approval of Plan Amendment. The following criteria
shall be applied by the Board of Commissioners in approving or
denying a plan amendment application:
(a) The amendment must be consistent with the relevant statewide
planning goals adopted by the Land Conservation and Development
Commission; and
(b) Adoption of the amendment must not make the Metro Plan
internally inconsistent.
METRO PLAN AMENDMENT - EUGENE CODE CRITERIA
Eugene Code 9.7715 - Metro Plan - Initiation of Plan Amendments
(1) Who Can Initiate Metro Plan Amendments. An amendment
to the Metro Plan can be initiated by the following persons or
entities:
* * * * *
(b) Type II Plan Diagram and Site Specific Text Amendments.
* * * * *
2. Between the city limits and the plan boundary. By any of the 3
governing bodies and citizens.
3. * * * A citizen initiating a Type II Metro Plan amendment
must own the property subject to the amendment.
(2) When Plan Amendments Can be Initiated. Amendments to
the Metro Plan shall be initiated and considered at the following
times:
* * * * *
(b) Citizen-initiated Type II Metro Plan amendments may be
applied for at any time. The initial public hearing on an
application shall take place within 60 days of acceptance of a
complete application.
The subject property is within the Metro Plan boundary and outside of the Eugene Urban Growth
Boundary. The application requests an amendment to the Metro Plan diagram which is a Type II
Metro Plan amendment. The application constitutes a citizen-initiated Type II Metro Plan
amendment which can be initiated at any time by citizens and can be considered at any time by
the City of Eugene and Lane County.
Eugene Code 9.7730(3) - Approval Criteria
(3) Criteria for Approval of Plan Amendment. The following
criteria shall be applied by the city council in approving or
denying a Metro Plan amendment application:
Ordinance - 8
(a) The amendment must be consistent with the relevant
Statewide Planning Goals adopted by the Land Conservation and
Development Commission; and
(b) Adoption of the amendment must not make the Metro Plan
internally inconsistent.
CONSISTENCY WITH GOAL 5
PAPA Definition.
A "PAPA" is a post-acknowledgment plan amendment. Approval of the subject
application to amend the Metro Plan diagram and significant aggregate site inventory will
constitute a PAPA.
Local Governments Are Required to Amend Acknowledged Inventories or Plans
with Regard to Mineral and Aggregate Resources in Response to an Application for
a PAPA If the Applicable Criteria Are Satisfied.
OAR 660-023-180(2)(a): A local government may inventory
mineral and aggregate resources throughout its jurisdiction, or
in a portion of its jurisdiction. When a local government
conducts an inventory of mineral and aggregate sites in all or a
portion of its jurisdiction, it shall follow the requirements of OAR
660-023-0030 as modified by subsection (b) of this section. When
a local government is following the inventory process for a
mineral or aggregate resource site filed under a PAPA, it shall
follow only the applicable requirements of OAR 660-023-0030,
except as provided in sections (3) and (6) of this rule.
Introduction - Significance Criteria.
OAR 660-023-0180(2)(b): Local governments shall apply the
criteria in section (3) of this rule rather than OAR
660-023-0030(4) in determining whether an aggregate resource
site is significant.
Introduction - Criteria for Allowing Mining on Significant Sites in Response to a
PAPA.
OAR 660-023-0180(2)(c): Local governments shall follow the
requirements of section (4) of this rule in deciding whether to
authorize the mining of a significant mineral or aggregate
resource site.
PAPA Submittal Criteria. OAR 660-023-0180(6)
(6) In order to determine whether information in a PAPA
submittal concerning an aggregate site is adequate, local
government shall follow the requirements of this section rather
than OAR 660-023-0030(3). An application for a PAPA
concerning a significant aggregate site shall be adequate if it
includes:
(a) Information regarding quantity, quality, and location
sufficient to determine whether the standards and conditions in
section (3) of this rule are satisfied;
Ordinance - 9
(b) A conceptual site reclamation plan;
(NOTE: Final approval of reclamation plans resides with
DOGAMI rather than local governments, except as provided in
(
ORS 517.780)
(c) A traffic impact assessment within one mile of the entrance to
the mining area pursuant to section (4)(b)(B) of this rule;
(d) Proposals to minimize any conflicts with existing uses
preliminarily identified by the applicant within a 1,500 foot
impact area; and
(e) A site plan indicating the location, hours of operation, and
other pertinent information for all proposed mining and
associated uses.
This application for a PAPA contains the following:
An analysis of the aggregate resource of the subject property, conducted by EGR &
Associates, Inc. (EGR), Oregon registered geologists, is attached as an exhibit to the application
and our findings and conclusions regarding that analysis are further discussed below.
A conceptual site reclamation plan is attached as an exhibit to the application and our
findings and conclusions regarding that plan are further discussed below.
Lane Code 15.697(1) requires that a traffic impact analysis may be required for any plan
amendment proposal, unless waived by the County Engineer as specified in Lane Code
15.697(2). Lane Code 15.697(2) provides that the County Engineer may waive traffic impact
analysis requirements specified in LC 15.697(1) when, in the case of a plan amendment, the
scale and size of the proposal is insignificant, eliminating the need for detailed traffic analysis of
the performance of roadway facilities for the 20-year planning horizon. Lane Code 15.697(2)(b)
provides that, generally, a waiver to Traffic Impact Analysis will be approved when the plan
designation that results will be entirely a resource designation or there is adequate information
for the County Engineer to determine that a transportation facility is not significantly affected as
defined in Lane County Transportation System Plan Policy 20-d. We find that approval of the
application will result in the re-designation of the subject property from one resource designation
(Agriculture) to another (Sand and Gravel). Specifically, the proposed plan amendment will
result in the Metro Plan diagram designation of the subject property being changed to “Sand and
Gravel” and in the county zoning of the property being changed to “Sand, Gravel and Rock
Products.” Furthermore, as more specifically addressed below, we find that approval of the
application will not result in any additional traffic on any local roads and, consequently, will not
significantly affect any transportation facility. Therefore, we find that the Lane County Engineer
should waive the traffic impact analysis requirements of Lane Code.
Proposals to minimize conflicts with existing uses within a 1,500 foot impact area are
contained in the application and our findings and conclusions regarding those proposals are
further discussed below.
The location, hours of operation and other pertinent information for all proposed mining
and associated uses is provided in the application, which contains the following consultants
reports:Report on Noise Study (Daly-Standlee & Associates, Inc.) (hereinafter referred to as
“Daly-Standlee”) (Exhibit F); Air Quality Evaluation (Bridgewater Group, Inc.) (hereinafter
referred to as “Bridgewater”) (Exhibit G); Flood Impact Evaluation (EGR & Associates, Inc.)
(hereinafter referred to as “EGR”)(Exhibit H); and Digital Model-Groundwater (EGR) (Exhibit
I).
We Find That The Aggregate Resource Site is Significant.
OAR 660-023-0180(3):
Ordinance - 10
An aggregate resource site shall be considered significant if
adequate information regarding the quantity, quality, and
location of the resource demonstrates that the site meets any one
of the criteria in subsections (a) through (c) of this section,
except as provided in subsection (d) of this section:
(a) A representative set of samples of aggregate material in the
deposit on the site meets Oregon Department of Transportation
(ODOT) specifications for base rock for air degradation,
abrasion, and sodium sulfate soundness, and the estimated
amount of material is more than 2,000,000 tons in the Willamette
Valley, or 100,000 tons outside the Willamette Valley;
b) The material meets local government standards establishing a
lower threshold for significance than subsection (a) of this
section; or
(c) The aggregate site is on an inventory of significant aggregate
sites in an acknowledged plan on the applicable date of this rule.
(d) Notwithstanding subsections (a) through (c) of this section,
except for an expansion area of an existing site if the operator of
the existing site on March 1, 1996 had an enforceable property
interest in the expansion area on that date, an aggregate site is
not significant if the criteria in either paragraphs (A) or (B) of
this subsection apply:
(A) More than 35 percent of the proposed mining area consists of
soil classified as Class I on Natural Resource and Conservation
Service (NRCS) maps on the date of this rule; or
(B) More than 35 percent of the proposed mining area consists of
soil classified as Class II, or of a combination of Class II and
Class I or Unique soil on NRCS maps available on the date of
this rule, unless the average width of the aggregate layer within
the mining area exceeds:
(i) 60 feet in Washington, Multnomah, Marion, Columbia, and
Lane counties;
(ii) 25 feet in Polk, Yamhill, and Clackamas countiesor
;
(iii) 17 feet in Linn and Benton counties.
We conclude and find that the subject property is a significant aggregate resource site.
The application contains adequate information regarding the quantity, quality and location of the
aggregate resource that demonstrates that the proposed expansion area meets applicable criteria
of OAR 660-023-0180(3) as follows:
(a)A representative set of samples of aggregate material
in the deposit on the site meets Oregon Department of
Transportation (ODOT) specifications for base rock for air
degradation, abrasion, and sodium sulfate soundness, and the
estimated amount of material is more than 2,000,000 tons in the
Willamette Valley
EGR has been retained by the applicant to evaluate the aggregate material reserves in the
proposed expansion area. EGR is a long-standing engineering firm in Eugene, Oregon, with
licensed and experienced engineers. EGR is a legitimate technical resource that has the expertise
and experience to conduct evaluations of aggregate material deposits in Lane County, Oregon.
EGR published the results of its evaluation in the document titled “Evaluation of
Aggregate Resources: Delta Sand and Gravel Expansion Area, dated June 2005, and a copy of
the EGR report is attached as an exhibit to the application. In that report, EGR determined that
coarse aggregate samples obtained during its field exploration of the expansion area met ODOT
base rock specifications. The report contains laboratory data demonstrating that the coarse
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aggregate (gravel) fraction present at the expansion site meets the base rock specifications
required by ODOT and Goal 5. Similarly, the report demonstrates that all of the coarse
aggregate samples meet the ODOT soundness requirements for Portland Cement Concrete.
Furthermore, EGR concluded that the estimated volume of aggregate available within the
proposed expansion area is 9,082,260 tons (more than four times the volume required by rule).
That information demonstrates that the expansion area meets the criteria of OAR 660-023-
0180(3)(a).
Opponents of the application testified that they believed that EGR’s methodology for
sampling should be challenged and that EGR’s sampling and conclusions regarding the quantity,
quality and location of the aggregate resource existing within the expansion area should be
independently verified. In testimony following the joint planning commission public hearing,
EGR effectively rebutted the arguments of opponents regarding the quantity, quality and location
of the aggregate resource. Furthermore, in testimony during the joint elected officials’ public
hearing, the applicant provided evidence to support its methodology and conclusions in the form
of correspondence from ODOT and DOGAMI. ODOT’s correspondence confirmed EGR’s
conclusion that material sampled from the aggregate deposit on the subject property met ODOT
specifications for base rock (ODOT tested representative samples from the EGR borings to reach
its conclusion). DOGAMI’s correspondence confirmed that the sampling and conclusions by
EGR and ODOT were correct and result in a finding that the subject expansion area contains a
significant deposit of aggregate material and that the site is a significant aggregate site that meets
the criteria of OAR 660-023-0180(3)(a).
We also note, for purposes of providing supporting reasoning for these findings, that the
expansion area is proposed as an extension of an existing significant resource site that has been
mined by the applicant for more than 80 years. We find it reasonable to expect that land
immediately adjacent to an existing significant resource site will also contain a significant
deposit of aggregate material similar to that of the existing site.
Based upon the applicant’s testimony, ODOT and DOGAMI confirmation of the
conclusions contained in that testimony and the fact that the applicant is proposing to expand an
existing aggregate site containing a significant deposit of aggregate material, we find that the
subject property is a significant aggregate site as defined by the Goal 5 administrative rule.
(d)Notwithstanding subsections (a) through (c) of this
section, except for an expansion area of an existing site if the
operator of the existing site on March 1, 1996 had an
enforceable property interest in the expansion area on that date,
an aggregate site is not significant if the criteria in either
paragraphs (A) or (B) of this subsection apply:
(B) More than 35 percent of the proposed mining area
consists of soil classified as Class II, or of a combination of Class
II and Class I or Unique soil on NRCS maps available on the
date of this rule, unless the average width of the aggregate layer
within the mining area exceeds:
(i) 60 feet in Washington, Multnomah, Marion,
Columbia, and Lane counties;
In its report, EGR estimated that the average width of the aggregate layer within the
expansion area is 70.5 feet. The 1997 Lane County Soil Ratings for Forestry and Agriculture,
which are based upon U.S. Department of Agriculture Natural Resources Conservation Service
data and methodology, map the soils covering the expansion area as predominantly Class II
soils (Newberg fine sandy loam, Newberg loam, Chehalis silty clay loam, Newberg urban land
complex and Camas gravelly sandy loam). While more than 35% of the expansion area is
covered in Class II soils, the average width of the aggregate layer within the expansion area is
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estimated by EGR to be 70.5 feet, with a maximum overburden width of 4 feet, which exceeds
the 60-foot requirement of OAR 660-023-0180(3)(d)(B)(i). Accordingly, we find that the
expansion area contains a quantity of aggregate material sufficient to meet the requirements of
the administrative rule.
We Find That The Criteria for Allowing Mining of the Site are Satisfied.
OAR 660-023-0180(4):
(a) The local government shall determine an impact area for the
purpose of identifying conflicts with proposed mining and
processing activities. The impact area shall be large enough to
include uses listed in subsection (b) of this section and shall be
limited to 1,500 feet from the boundaries of the mining area,
except where factual information indicates significant potential
conflicts beyond this distance. For a proposed expansion of an
existing aggregate site, the impact area shall be measured from
the perimeter of the proposed expansion area rather than the
boundaries of the existing aggregate site and shall not include
the existing aggregate site.
The term “mining area” as used above is defined at OAR 660-023-0180(1)(g) as:
“the area of a Site within which mining is permitted or
proposed, excluding undisturbed buffer areas or areas on a
parcel where mining is not authorized.”
The Goal 5 Rule defines “mining” as:
“the extraction and processing of mineral or aggregate
resources, in the manner provided under ORS 215.298(3).”
OAR 660-023-0180(1)(h).
The definition of “mining area” restricts the review of impacts to 1,500 feet from the
boundary of the area where mining is proposed to occur, unless factual information indicates that
a significant potential conflict from mining could occur with existing and approved uses beyond
that distance. We find that no credible factual information existing in the record to indicate or
demonstrate that analysis of a larger impact area is required for the proposed mining activity.
The applicant has analyzed all potential conflicts with mining of aggregate material on the
expansion area within an impact area extending 1,500 feet from the perimeter of the proposed
expansion area. The land uses of that impact area and the potential conflicts, with identified
mitigation measures, are discussed in the following sections.
(b) The local government shall determine existing or approved
land uses within the impact area that will be adversely affected by
proposed mining operations and shall specify the predicted
conflicts. For purposes of this section, "approved land uses" are
dwellings allowed by a residential zone on existing platted lots
and other uses for which conditional or final approvals have
been granted by the local government. For determination of
conflicts from proposed mining of a significant aggregate site,
the local government shall limit its consideration to the
following:
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(A) Conflicts due to noise, dust, or other discharges with regard
to those existing and approved uses and associated activities (e.g.,
houses and schools) that are sensitive to such discharges;
We find that land uses on land surrounding the proposed expansion area, and within the
impact area, consist of residential, agricultural and industrial uses. Residences are located south,
west and north of the proposed expansion area. The nearest residence is located approximately
90 feet north of the boundary of the proposed expansion area. A single agricultural field
containing nursery tree stock is located within the impact area, northeast of the proposed
expansion area. The existing Delta Sand and Gravel Company facility is located directly east of
the proposed expansion area and the Eugene Sand and Gravel facility is located further east
across the Willamette River from the Delta Sand and Gravel Company property.
The applicant has identified the potential conflicts from the proposed mining of the
subject property due to noise, dust and other discharges associated with mining and processing
activities in the proposed expansion area. Those conflicts are as follows:
Noise
The applicant retained Daly-Standlee, Oregon registered engineers, to prepare a noise
study for the proposed expansion area. That study, titled “Report On Noise Study for Delta Sand
& Gravel New Mining Area”, dated June 14, 2005, is attached to the application. The report
concludes that certain areas within the impact area could be subjected to mining activity noise
above the limit allowed by the Oregon Department of Environmental Quality (DEQ) for a “new
noise source” on a “previously unused site.”
Dust and Engine Emissions
The applicant retained Bridgewater to prepare an evaluation of air quality issues
associated with the proposed expansion area. That evaluation, titled “Air Quality Evaluation”,
dated June 1, 2005, is attached to the application. The evaluation concludes that aggregate
mining and processing activities could generate dust and potentially create a nuisance condition
for the nearby residences due to unusual or annoying amounts of dust present in the ambient air.
Other “discharges” under the administrative rule could be defined to include air
emissions from diesel engines. However, the Bridgewater evaluation concludes that, due to the
small quantity of onsite excavation equipment and haul trucks, and the distant location of the
equipment to one another and the proposed expansion area boundary, no conflict due to diesel
exhaust will result from mining and processing activities associated with the proposed expansion
area.
Flooding
The applicant retained EGR to prepare an evaluation of flood impacts associated with the
proposed expansion area. That evaluation, titled “Evaluation of Potential Flood Impacts: Delta
Sand and Gravel Expansion Area”, dated June 6, 2005, is attached to the application. The
evaluation concluded that the method of mining the proposed expansion area will not result in a
potential to impede flood flow, to reduce flood storage volume within the flood plain or to
increase the velocity of water flowing across the site. The report concludes that the method of
mining completely avoids any potential adverse flood impacts associated with mining activities
on the proposed expansion area and, therefore, that no conflicts associated with flooding will
result from mining and processing activities on the proposed expansion area.
Groundwater
The applicant retained EGR to prepare an evaluation of groundwater impacts associated
with the proposed expansion area. That evaluation, titled “Digital Model of Existing Excavation
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Site and New Expansion Area”, dated June 2005, is attached to the application. The evaluation
concluded that the proposed expansion of excavation (of the expansion area) could have an effect
on groundwater resources in the immediate vicinity of the excavation. As accumulated water
(rainwater and groundwater flowing into the excavations) is pumped from the excavations, the
groundwater table could be lowered radially outward from the excavation edge. EGR noted that
expansion of excavation in the area will not significantly affect municipal water supply system
users in the area and that only one known significant groundwater user still exists in the vicinity
of excavation site. The report concludes that that user is the plant nursery immediately to the
north of the site that has already experienced most of the impact it will experience from present
or expanded excavation. The evaluation concluded that mitigation may be required if other
significant groundwater users exist in the vicinity of the excavation.
(B) Potential conflicts to local roads used for access and egress to
the mining site 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. Conflicts shall be determined based on clear
and objective standards regarding sight distances, road capacity,
cross section elements, horizontal and vertical alignment, and
similar items in the transportation plan and implementing
ordinances. 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 materials;
We find that approval of the application will not result in any conflicts to local roads used
for access and egress to the mining site. Approval of the application will not result in any
change in the applicant’s current use of local roads used for access to and egress from its facility.
The proposed expansion area will merely be an additional area of land, adjacent to the
applicant’s existing facility, used by the applicant to provide the resource that it processes on its
existing site into a marketable product. No change or modification of the applicant’s existing
aggregate processing methodology or facility will be required as a result of the proposed
expansion of its resource extraction site. Approval of the application will result only in the
applicant’s use of the proposed expansion area as an additional, continual and consistent source
of aggregate material needed for the continuation of the applicant’s business, at its current level
of operation and production, at its current facility. We find that that use will not result in any
increase in the number of vehicles leaving or entering the applicant’s facility for the purpose of
delivering its finished product to market. Furthermore, we find that that use will not result in an
increase in the number of third party vehicles servicing applicant’s business. Because no
increase in product delivery or service is associated with the applicant’s proposed addition to its
source of aggregate material, no conflicts to local roads will result from approval of the
application.
C) Safety conflicts with existing public airports due to bird
(
attractants, i.e., open water impoundments. This paragraph shall
not apply after the effective date of commission rules adopted
pursuant to Chapter 285, Oregon Laws 1995;
The Eugene Airport is the only existing public airport in the general metropolitan area
and is located several miles from the proposed expansion area and outside the impact area. Due
to that distance separating the airport from the proposed expansion area, we find that any bird
attraction by open water impoundment on the expansion area will be negligible if at all.
Furthermore, this provision is no longer applicable since the December 23, 1996 effective date of
adoption of division 13 of OAR Chapter 660, which carries out Chapter 285, Oregon Laws 1985.
(D) Conflicts with other Goal 5 resource sites within the impact
area that are shown on an acknowledged list of significant
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resources and for which the requirements of Goal 5 have been
completed at the time the PAPA is initiated;
No other Goal 5 resources shown on a Metro Plan acknowledged list of significant resources
exist within the impact area. Nonetheless, opponents have argued that a meandering scar of the
Willamette River is located on a portion of the northwestern boundary of the expansion area and
that it constitutes a wetland. The opponents further argue that the existence and operation of the
aquaclude (see discussion below regarding the aquaclude) will negatively impact the water levels
and, consequently, the functions of the wetland. EGR, in testimony provided during the planning
commission joint public hearing and deliberation, testified that the aquaclude would not produce
the types of impacts to the wetland argued by the opponents. EGR and the applicant provided
further testimony during the elected officials’ joint public hearing that the aquaclude would be
constructed in a manner that leaves the top elevation of the clay-filled aquaclude one foot below
the measured elevation of the wetland, approximately six to eight feet below ground surface.
EGR testified that, even if the opponents were correct in their arguments that the aquaclude
would negatively impact surface water that flows through the wetland (which EGR argues they
are not), the modification to the aquaclude construction that positions the aquaclude beneath the
measured elevation of the wetland will ensure that its existence and operation will not negatively
impact the wetland. Based upon the cumulative testimony of EGR we find that approval of the
application will not result in negative impacts on the wetland.
(E) Conflicts with agricultural practices; and
We find that approval of the application will not conflict with agricultural practices
within the impact area. The only property within the impact area currently committed to
agricultural use is tax lot 900, located on the subject property’s northern boundary. The owner of
tax lot 900 has maintained nursery tree stock on that property for many years without conflict or
negative impact from the nearby Delta Sand and Gravel Company operating facility. The owner
of tax lot 900 testified that he did not believe that Delta’s mining within the expansion area
would have negative effect on or conflict with his agricultural operation. The facility’s existing
excavation pit is immediately south of tax lot 900, well within 1500 feet of the agricultural use of
tax lot 900. Approval of the application will not change the physical relationship of tax lot 900
to the excavation area. We further find that any potential conflicts, even though not existing in
the past and not identified for the future, that have been identified in this application (noise, dust,
flooding, groundwater, traffic, etc.) relative to other existing uses, would be equally minimized
relative to agricultural uses by the application of the mitigation measures identified below in this
section.
(F) Other conflicts for which consideration is necessary in order
to carry out ordinances that supersede Oregon Department of
Geology and Mineral Industries (DOGAMI) regulations
pursuant to ORS 517.780;
No ordinances that supersede DOGAMI regulations, pursuant to ORS 517.780 have been
identified and therefore, no consideration of other conflicts associated with such ordinances is
necessary.
(c) The local government shall determine reasonable and
practicable measures that would minimize the conflicts identified
under subsection (b) of this section. To determine whether
proposed measures would minimize conflicts to agricultural
practices, the requirements of ORS 215.296 shall befollowed
rather than the requirements of this section. If reasonable and
practicable measures are identified to minimize all identified
conflicts, mining shall be allowed at the site and subsection (d) of
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this section is not applicable. If identified conflicts cannot be
minimized, subsection (d) of this section applies.
Noise
Daly-Standlee concluded that, with appropriate noise mitigation measures, noise
generated by future mining operations in the proposed expansion area will comply with the most
demanding interpretation of the DEQ Noise Regulations for Industry and Commerce at all
residential properties around the proposed expansion area.
Daly-Standlee begins its analysis of potential noise impact by stating that certain areas
within the impact area may be subjected to mining activity noise above the limit allowed by the
DEQ for a “new noise source” on a “previously unused site.” DEQ noise limits for a new noise
source on a previously unused site (OAR 340-35-0015(14) and 340-35-0035(1)(b)(B)(i) (Table
8)) are more restrictive than the noise limits for “existing noise sources” (OAR 340-35-0015(17)
and 340-35-0035(1)(a) (Table 7)). Daly-Standlee states that historically DEQ has ruled that
when a mine site is expanded onto contiguous property, noise criteria which applied to the
equipment before expansion shall also apply to the equipment while in the expansion area.
Because aggregate mining has been occurring on the 474 adjacent acres of Delta Sand and
Gravel Company ownership since 1927, it could be argued that the existing mining operation is
an “existing noise source” and that the expansion area should be subjected to the less stringent
existing noise source criteria under that historic DEQ interpretation. However, it could also be
argued that the proposed expansion area is an “unused site” and that equipment moved to that
area should be considered a “new noise source on a previously unused site.”
Delta Sand and Gravel Company has elected to address potential noise impacts of a new
noise source on a previously unused site and to subject its future aggregate extractions to the
more restrictive DEQ noise limits for such a noise source. Because Daly-Standlee states that
certain areas within the impact area may be subjected to mining activity noise above the limit
allowed by the DEQ for a new noise source on a previously unused site, this application must
demonstrate that the potential noise impacts can be minimized. OAR 660-023-0180(1)(g)
provides that noise conflicts are considered minimized under the rule when the relevant DEQ
noise regulations (OAR 340-035-0035) are met.
Daly-Standlee concludes that, with appropriate mitigation measures, noise generated by
mining activity at the proposed expansion area will comply with the most demanding
interpretation of DEQ regulations at all residential properties within the impact area.
Daly-Standlee proposes a variety of mitigation measures, starting with limiting the first
and second lift mining operations to the time period from 7 o’clock AM to 10 o’clock PM.
Daly-Standlee proposes alternative mining procedures at various locations of the proposed
expansion area. Those alternative procedures are provided in Tables 7 and 8 of the noise study.
The study further concludes that if the proposed alternative procedures are followed during the
first and second lifts then no noise mitigation will be required for the third and subsequent lifts.
That statement is based upon the fact that due to the depth of operating equipment below grade
(surface level), the noise barrier effect provided by the face of the excavation combined with the
distance effect will reduce noise to a level in compliance with the DEQ noise restrictions at all
locations within the impact area.
Opponents of the application have challenged the Daly-Standlee report on grounds of
methodology and conclusions. We find that Daly-Standlee’s rebuttal of the opponents’
arguments is reasonable and provides significant evidence that the DEQ noise level requirements
will be met or exceeded through implementation of the proposed mitigation measures.
We find further that the initial construction of the aquaclude, which involves the removal,
stockpiling and return of topsoil and overburden to the trench during the surface digging,
constitutes a construction project that is exempt from DEQ noise level requirements. We also
Ordinance - 17
find that the applicant’s method of construction of the aquaclude, including the creation of
temporary berms of the stockpiled topsoil and overburden, will not produce noise levels in
excess of DEQ requirements. We find that the remainder of the construction of the aquaclude,
because it involves the extraction and use of the aggregate material for aggregate production,
does not constitute a construction project. We find further that Daly-Standlee has adequately
demonstrated, in its subsequent report placed in to the record of the proceeding during the
elected officials’ public hearing, that the remainder of the construction of the aquaclude as
proposed by the applicant will not produce noise levels in excess of DEQ requirements.
Daly-Standlee concludes that, with implementation of the provided mitigation measures,
the potential noise conflicts associated with mining activity in the proposed expansion area will
be minimized consistent with the Goal 5 Rule and, based upon the Daly-Standlee analysis and
conclusions, we find accordingly.
Dust
Bridgewater concluded that, with the appropriate dust minimization measures, mining of
the proposed expansion area would be compliant with Lane Regional Air Pollution Agency
(LRAPA) airborne particulate matter emission standards and fugitive dust requirements and,
based upon Bridgewater’s analysis and conclusions, we find accordingly. We note that, for those
types of conflicts addressed by local state or federal standards, to “minimize a conflict” means to
ensure conformance to the applicable standard (OAR 660-023-0180(1)(g). Lane County’s
airshed is protected and regulated by LRAPA and the applicant currently holds an Air
Contaminant Discharge Permit (ACDP) from LRAPA for its existing mining and processing
facility on the adjacent Delta property. That ACDP requires that the rock crushing facility of the
applicant remain in its current location and also provides a limitation on the amount of rock
produced from that facility. We find that the activities proposed for the expansion area will
become subject to the current LRAPA ACDP (and regulated thereby) and we find that the
applicant has demonstrated that its activities proposed for the expansion area will conform to the
standards contained in the current LRAPA ACDP.
Bridgewater provides the list of proposed dust control measures that includes the
requirement that the expansion area shall be included within the LRAPA ACDP for the existing
Delta Sand and Gravel Company operation, and that the provisions of that ACDP shall be
followed by the applicant on the proposed expansion site. A copy of the ACDP is attached to the
application. The ACDP requires that the LRAPA-approved Fugitive Dust Control Program be
followed at the existing company site. The expansion area shall be added to the ACDP and the
Fugitive Dust Control Program shall be implemented on the proposed expansion area.
Bridgewater recommends additional dust control measures and those measures are listed below
in these findings.
Opponents of the application testified that they believe that the applicant cannot minimize
dust conflicts from the proposed mining with nearby residential land uses and believe that the
aggregate extraction process (mining) creates conflicting amounts of dust.
We find that potential dust conflicts have been demonstrated to result primarily from
three activities associated with mining and processing of aggregate material. Those activities are
1) excavation of the site for aggregate material, 2) transport of the excavated material to the
processing facility and 3) the processing facility (rock crushing operations). We find that the
current ACDP includes provisions that regulate the manner in which those activities occur on the
existing Delta facility site and that control the applicant’s production of airborne particulate
matter at a level that meets LRAPA (and Oregon Department of Environmental Quality)
standards.
Furthermore, we find, based upon testimony provided by the applicant during the elected
officials’ joint public hearing (in the form of a video of the current extraction process on the
existing mining site), that the process of mining the material does not produce dust as has been
Ordinance - 18
argued by the opponents of the application. The applicant’s video is very clear in its depiction of
the mining operation and the fact that the mine wall contains significant amounts of groundwater
and is in a continual wet condition. The video also clearly demonstrates that the mining of that
wet wall produces virtually no dust. The video also contains a clear demonstration that the
watered haul roads (as required by the LRAPA ACDP) from the extraction site to the rock
crusher do not produce significant amounts of dust.
Finally, we note that the applicant has testified that its request is merely to add the
expansion area’s additional aggregate material to its current inventory and that the processing
facility (the rock crusher and associated facilities) will remain at its current LRAPA-regulated
location and will not produce finished aggregate material in excess of its current LRAPA ACDP-
mandated levels. The location of the processing facility and its production level is strictly
regulated by the ACDP. The applicant has testified that the location of that facility and its
production levels will not change as a result of approval of this application. Therefore, the entire
Delta site, and all activities thereon, will continue to be regulated by the ACDP. By law, Delta’s
ongoing compliance with the ACDP requirements ensures that any potential dust conflicts from
any of those activities is and will be minimized.
We find that the applicant’s requirement to operate all expansion area mining and
processing activities in conformance with the current LRAPA ACDP (modified to add the
expansion area to the existing permit and its requirements), and the applicant’s demonstration
that it will operate within the expansion area in conformance with the permit requirements
provides a legal basis to conclude and find that any potential dust conflicts from the proposed
mining of the expansion area have been, and will be, minimized as required by Goal 5.
Flooding
EGR has concluded that the Delta Sand and Gravel Company method of mining will
create no obstructions or other physical features that could impede flood flows across the
proposed expansion area. Essentially that conclusion means that flood flows should not be
impeded across the proposed expansion area if no fill within the floodway occurs. All mining
activity proposed for the expansion area will occur as excavation taking place below existing
ground surfaces. Within that mining methodology overburden will be removed and stockpiled in
areas higher in elevation than base flood elevations and/or stockpiled at locations on company
property that are below existing ground elevations. EGR concludes that the proposed mining
methodology on the proposed expansion area will not impede flood flow, reduce flood storage
volume within the flood plain or increase the velocity of water flowing across the proposed
expansion area. EGR further concludes that the proposed mining methodology completely
avoids all potential flood impacts.
Opponents of the application argue that the existence and operation of the aquaclude (see
subsequent discussion and findings regarding the aquaclude) will cause flooding on adjacent
residential lands because groundwater will be prevented by the aquaclude from migrating from
those lands to the mining site during heavy rain events. EGR has addressed that argument and
has demonstrated, in its rebuttal materials provided during the planning commission joint public
hearing and deliberation, that the movement of groundwater is not connected to surface water
that constitutes flooding during such events. Nonetheless, in response to the opponents’
argument, the applicant and EGR have provided a modified aquaclude construction that leaves
the top elevation of the clay-filled aquaclude one foot below the measured elevation of the
wetland that exists on the meandering scar, approximately six to eight feet below ground surface.
While continuing to impede the rate of flow of groundwater from the adjacent property to the
expansion area (and mining pit), the aquaclude would allow the passage of a limited amount of
groundwater from the adjacent property, over the clay material and into the mining area during
heavy rain events. That elevation will also ensure that the aquaclude has no negative impact on
the water level of the wetland at different times during the year. We find that EGR has provided
significant evidence to support it conclusion that the aquaclude will minimize potential conflicts
Ordinance - 19
resulting from the movement of groundwater from adjacent lands to the mining area and that its
existence and operation will not produce flooding on adjacent lands.
We find that approval of the application will not result in flooding conflicts with adjacent
land uses.
Groundwater
EGR recommends that a low permeability barrier, groundwater dam or other flow
restriction of the upper aquifer should be constructed, at the applicant’s expense, as the
excavation proceeds to the west. EGR concludes that the construction of a low permeability
barrier could actually result in lower pumping of water, with significant benefit to the aquifer and
area groundwater users. That low permeability barrier has been termed the “aquaclude” by EGR
and the applicant.
EGR recommends that excavation should begin on the east side of the expansion area and
that the aquaclude should proceed ahead of the excavation to the west. Construction of the
aquaclude should occur before excavation comes within 400 feet of its location. The aquaclude
should be at least 12 feet wide at the bottom and slope upward through the upper aquifer from
1:5 to 2:1 to the original ground surface. The aquaclude should be placed within the setback area
to insure its separation from the excavation proper and to place its outer edge as close as possible
to the surrounding off-site shallow aquifer. EGR also recommends that a buttress of native
material be left between the aquaclude and the excavation area proper.
EGR’s ultimate conclusion is that placement of a low permeability barrier around most of
the excavation should result in restoring groundwater levels around the excavation pit to near
pre-development levels. DOGAMI has provided the applicant with its preliminary concurrence
with EGR’s ultimate conclusion. A copy of correspondence from the agency to the applicant is
included with EGR’s evaluation attached to the application. The correspondence states that
“there may actually be a slight mounding of the ground water in the shallow aquifer within close
proximity to the barrier thus eliminating the possibilities of drawdowns which could impact
supply wells within the area.”
Construction of the aquaclude within the setback area requires an administrative variance
pursuant to Lane Code. Lane Code 16.217(4)(b)(v)(bb) and (dd) provide:
(bb) The Director may grant an administrative variance to waive the
setback from adjoining property in a Sand, Gravel and Rock
Products Zone, if no flood hazard will result.
(dd) Excavation may be conducted within the setback area under a
plan approved by the Director through an administrative variance
whereby the excavated area will be refilled with other materials
which will neither decompose nor pollute underground waters.
Lane County’s approval of the administrative variance requires a demonstration that no flood
hazard will result from operating within the setback and that the excavated area will be refilled with other
materials which will neither decompose nor pollute underground waters. As discussed above in our
findings regarding flooding, EGR has provided adequate and significant evidence that the existence and
operation of the aquaclude will not result in flooding of adjacent lands. The applicant and EGR testified
that the trench constructed for the aquaclude will be filled with clay material excavated from other
locations on the applicant’s adjacent ownership and operation. We find that the proposed clay material
for the aquaclude is a natural soil that will not decompose and will not pollute underground waters.
Furthermore, we find that the applicant and EGR have demonstrated that the criteria for approval of the
administrative variance, provided by LC 16.217(4)(b)(v)(bb) and (dd), have been met and that the
administrative variance should be granted.
Ordinance - 20
(ORS 215.296 Standards for approval of certain uses in exclusive
farm use zones. (1) A use allowed under ORS 215.213 (2) or
215.283 (2) may be approved only where the local governing
body or its designee finds that the use will not:
(a) Force a significant change in accepted farm or forest
practices on surrounding lands devoted to farm or forest use; or
(b) Significantly increase the cost of accepted farm or forest
practices on surrounding lands devoted to farm or forest use.)
As stated previously in these findings, the established agricultural use of tax lot 900 and
the established mining operations of the adjacent existing facility have co-existed for many years
without conflict. We find that approval of this application will not change the relationship
between the two adjacent uses and will not result in conflict between the two uses. Accordingly,
approval of this application will have no effect on the farm practices occurring on tax lot 900,
will not change those practices and will not significantly increase the cost of those practices on
tax lot 900. We further find that the historical relationship between the two uses, as testified by
the applicant and the owner of the adjacent agricultural land, coupled with the immediate
location of each to the other, provides a factual basis for the reasonable conclusion that approval
of this application is consistent with ORS 215.296.
(d) The local government shall determine any significant
conflicts identified under the requirements of subsection (c) of
this section that cannot be minimized. Based on these conflicts
only, local government shall determine the ESEE consequences
of either allowing, limiting, or not allowing mining at the site.
Local governments shall reach this decision by weighing these
ESEE consequences, with consideration of the following:
(A) The degree of adverse effect on existing land uses within the
impact area;
We find that the applicant has demonstrated, through the analysis and evaluations of its
professional consultants, that all potential significant conflicts to all existing and approved land
uses within the impact area resulting from mining activities in the proposed expansion area can
be minimized. All existing and approved land uses within the impact area have been identified.
All potential and significant conflicts have been identified under the requirements of subsection
(c) of this section. Reasonable and practicable measures have been identified to minimize all
identified conflicts. A conflict is deemed minimized when there is conformance with the
applicable standard. OAR 660-023-0180(1)(f). If an identified potential conflict can be
demonstrated to comply with the applicable local, state or federal standard, an ESEE analysis is
not required to determine whether the conflict has been reduced to a level that is no longer
significant. Based upon the analysis and conclusions of the applicant’s professional consultants,
as discussed herein, we find that all significant potential conflicts can be minimized. Following
that determination, we are not required to determine the ESEE consequences of allowing,
limiting or not allowing mining within the proposed expansion area. OAR 660-023-0180(4)(c)
provides that if reasonable and practicable measures are identified to minimize all identified
conflicts, mining shall be allowed at the site and subsection (d) of that section is not applicable.
We find that the applicant has demonstrated that reasonable and practicable measures have been
identified to minimize all identified potential significant conflicts. Consequently, the
requirements of OAR 660-023-0180(d) are not applicable to this application.
(e) Where mining is allowed, the plan and implementing
ordinances shall be amended to allow such mining. Any required
measures to minimize conflicts, including special conditions and
procedures regulating mining, shall be clear and objective.
Additional land use review (e.g., site plan review), if required by
the local government, shall not exceed the minimum review
necessary to assure compliance with these requirements and
Ordinance - 21
shall not provide opportunities to deny mining for reasons
unrelated to these requirements, or to attach additional approval
requirements, except with regard to mining or processing
activities:
(A) For which the PAPA application does not provide
information sufficient to determine clear and objective measures
to resolve identified conflicts;
(B) Not requested in the PAPA application; or
(C) For which a significant change to the type, location, or
duration of the activity shown on the PAPA application is
proposed by the operator.
We find that the applicant has demonstrated throughout this section that Lane County and
the City of Eugene can and should allow mining within the proposed expansion area. Following
the decision to allow mining within the proposed expansion area, Lane County and the City of
Eugene shall amend the Metro Plan map to designate the subject property as “Sand and Gravel”,
shall amend the Metro Plan Goal 5 Significant Aggregate Site Inventory to include the proposed
expansion area therein and shall rezone the property to “Sand, Gravel and Rock Products.”
To implement our decision to allow mining within the proposed expansion area, our
respective ordinances shall include the following special conditions and procedures regulating
that mining:
Noise
?
Limit the first and second lift mining operations to the time period from 7 o’clock AM to
10 o’clock PM.
?
Conduct all mining within the proposed expansion area consistent with the alternative
mining procedures provided in Tables 7 and 8 of the Daly-Standlee noise study.
Dust
?
Implement the LRAPA-approved Fugitive Dust Control Program on the proposed
expansion area.
?
The excavation will be kept in a wet condition by the seepage of groundwater into it.
?
The excavation shall occur in phases to minimize the size of the area being disturbed at
any one time.
?
The main internal roadway (haul roads) used for onsite truck traffic shall be located as far
as practicable from the boundary of the proposed expansion area.
?
A water truck shall be available at all times to water the internal haul roads at a frequency
specified by the Fugitive Dust Control Program.
?
The proposed expansion area will be sprinkled with water as necessary to control dust
during mining and/or overburden removal.
?
Fifty-foot setbacks shall be maintained around the proposed expansion area boundary
except near residences where the setback shall be 150 feet.
?
Reclaimed areas will consist of open water features and vegetated areas to minimize
erosion and dust generation.
Flooding
?
All mining activity shall occur consistent with the proposed mining methodology of this
application.
Ordinance - 22
Groundwater
?
A low permeability barrier shall be constructed in advance of proceeding excavation in
the expansion area consistent with the recommendations of EGR.
(f) Where mining is allowed, the local government shall
determine the post-mining use and provide for this use in the
comprehensive plan and land use regulations. For significant
aggregate sites on Class I, II and Unique farmland, local
governments shall adopt plan and land use regulations to limit
post-mining use to farm uses under ORS 215.203, uses listed
under ORS 215.213(1) or 215.283(1), and fish and wildlife
habitat uses, including wetland mitigation banking. Local
governments shall coordinate with DOGAMI regarding the
regulation and reclamation of mineral and aggregate sites,
except where exempt under ORS 517.780.
The applicant’s proposed reclamation plan for the proposed expansion area outlines how
the area will be sequentially transformed from open agricultural fields to other use consistent
with this rule and land use laws in place at that time.
(g) Local governments shall allow a currently approved
aggregate processing operation at an existing site to process
material from a new or expansion site without requiring a
reauthorization of the existing processing operation unless limits
on such processing were established at the time it was approved
by the local government.
The applicant will process material excavated from the proposed expansion area at its
existing processing facility located adjacent to the proposed expansion area. Lane County did
not establish any limits on the processing of material from adjacent property when the existing
processing facility was originally approved and established. Therefore, Lane County and the
City of Eugene shall allow the existing Delta Sand and Gravel Company aggregate processing
facility to process material excavated from the proposed expansion area.
APPROVAL OF THE PAPAIS CONSISTENT WITH OTHER APPLICABLE
STATEWIDE GOALS.
Consistency with Goal 5 and OAR 660-023-0180 demonstrates consistency with other
applicable statewide goals. Nevertheless, other applicable statewide goals are addressed below.
Goal 1 - Citizen Involvement
To ensure the opportunity for citizen involvement in all
phases of the planning process.
Chapter Fourteen of the Lane Code provides for a notification and participation process
for all quasi-judicial land use matters. Notices of public evidentiary hearings are required to be
published in a newspaper of general circulation in the county in conformance with ORS 197.763.
By providing the notices required by state law and the Lane Code and the public evidentiary
hearings before its planning commission and board of commissioners, Lane County satisfies the
requirements and intent of Goal 1.
Chapter Nine of the Eugene Code provides for a notification and participation process for
all quasi-judicial land use matters. Notices of public evidentiary hearings are required to be
published in a local newspaper of general circulation in conformance with ORS 197.763. By
Ordinance - 23
providing the notices required by state law and the Eugene Code and the public evidentiary
hearings before its planning commission and board of commissioners, the City of Eugene
satisfies the requirements and intent of Goal 1.
Goal 2 - Land Use Planning
To establish a land use planning process and policy framework
as a basis for all decisions and actions related to the use of land
and to assure an adequate factual base for such decisions and
actions.
Goal 2 establishes a land use planning process and policy framework as a basis for all
land use decisions, and requires development of an adequate factual base to support those
decisions. A minor change is one that does not have significant effects beyond the immediate
area of change, and is based on special studies or information. The justification for the specific
change must be established by substantial evidence in support of the conclusion that the
applicable criteria have been met.
Lane County has adopted a Metro Plan amendment process with specific standards that
must be addressed to process and justify a change of the Metro Plan diagram or inventory.
Substantial compliance with the applicable plan amendment criteria in Lane Code Chapter 12
(consistency with relevant statewide planning goals) constitutes compliance with applicable
provisions. This application is supported by substantial evidence upon which the Lane County
Board of Commissioners may conclude that the applicable criteria have been met.
The City of Eugene has adopted a Metro Plan amendment process with specific standards
that must be addressed to process and justify a change of the Metro Plan diagram or inventory.
Substantial compliance with the plan amendment criteria in Eugene Code Chapter 9 (consistency
with relevant statewide planning goals) constitutes compliance with the applicable provisions.
This application is supported by substantial evidence upon which the Eugene City Council may
conclude that the applicable criteria have been met.
Goal 3 - Agricultural Land
To preserve and maintain agricultural lands.
Goal 3 provides for the protection of agricultural lands as those are defined under the
goal. In western Oregon, agricultural land consists of primarily Class I through IV soils
identified by the U.S. Department of Agriculture Natural Resources Conservation Service
and includes other lands found suitable for farm use considering soil fertility, climatic
conditions, availability of water and methodologies available for farm practices.
Soils on the subject property have been identified as containing 75 percent Class II soils.
The subject property contains no Class I soils.
We find that the subject property also contains mineral resources of the quantity and
quality that, pursuant to Goal 5 and the Oregon Administrative Rules implementing Goal 5,
establish the subject property as a significant resource site for aggregate purposes. The
administrative rules recognize that aggregate resources may be mined in areas of agricultural
soils. OAR 660-023-0180(3)(d) allows the disturbance of significant resource sites in Lane
County containing greater than 35 percent Class I or Class II soils and an average aggregate
layer width exceeding 60 feet in Lane County. OAR 660-023-0180(4)(b)(E) specifically
requires that conflicts with agricultural practices be addressed in a PAPA application. The
potential of such conflicts has been addressed in the sections pertaining to the Goal 5 rule.
We find that approval of the application will be consistent with the purpose and intent
of Goal 3.
Goal 4 - Forest Lands.
Ordinance - 24
To preserve forest lands for forest use.
We find that Goal 4 is not applicable to this application. There has previously been a
legislative determination by the metropolitan jurisdictions, as embodied in the acknowledged
Metro Plan, that the subject property is not forest land. This determination is validated by the
fact that are no forest resources existing on the subject property or on any surrounding land and
there are no areas within the subject property that fall within the definition of forest land. Also,
the soils of the subject property (Chehalis silty clay loam, Newberg loam, Newberg fine sandy
loam, Newberg urban land complex and Camas gravelly sandy loam) have no designated
Douglas Fir site index according to Lane County’s 1997 Soil Ratings for Forestry and
Agriculture.
Goal 5 - Open Space, Scenic and Historic Areas, and Natural Resources.
To conserve open space and protect natural and scenic resources.
There has previously been a legislative determination by the metro jurisdictions that no Goal 5
resources exist on subject site except wetlands, which are addressed in these findings. The
subject property has not been included in any inventory of needed open space or scenic areas
defined by Goal 5, nor has it been identified in the Metro Plan as having any historic, cultural or
natural resources which need to be preserved and/or protected. Therefore, we find that approval
of the proposed amendments will not result in any conflict with any Goal 5 resources.
With respect to wetlands, EGR, in its Evaluation of Aggregate Resources attached to the
application, determined that there is a wetland located within the meander scar along the
northwest boundary of the subject property That wetland does not extend beyond the eastern
bank of the meander scar and lies within the required 150’ mining setback from the property
boundary. Avoidance of wetlands in areas not covered by existing DOGAMI Mining
Permits will be accomplished by limiting mining operations to areas outside the applicable
setbacks from the expansion property boundary. All wetland area within the 150’ setback
shall be exempted from the administrative variance and the construction of the aquaclude
shall occur outside of the wetland area. Two excavated ponds are located in the southern
portion of the site, which were previously used in aggregate extraction and are currently
covered by DOGAMI permits, and thus exempt from wetland regulation.
The Goal 5 Administrative Rule for mineral and aggregate resources specifically addresses
other Goal 5 resources and limits considerations of conflict to “Goal 5 Resource Sites” that
have been identified in the Metro Plan. We find that, within that rule framework that limits
considerations regarding Goal 5 resources to identified sites, no conflicts with Goal 5
resources have been identified.
Goal 6 - Air, Water and Land Resources Quality.
To maintain and improve the quality of the air, water and land
resources of the state.
Goal 6 requires that air, land and water resources of the state be maintained and improved
by assuring that future development, in conjunction with existing development, does not violate
applicable state and federal environmental quality standards, and does not exceed the carrying
capacity of local airsheds, degrade land resources or threaten the availability of such resources.
The State of Oregon, City of Eugene and Lane County have sufficient regulatory measures in
place so as to ensure that existing land use activities, as well as any future development on the
site, will not produce any unanticipated impacts resulting from the proposed amendments.
The Lane Regional Air Pollution Authority (LRAPA) regulates the Lane County airshed
and the industries within it. LRAPA rules and permit requirements regulate the release of
particulate matter into the air. Its permit system for emissions provides the regulatory measures
that maintain the carrying capacity and quality of the airshed consistent with applicable state and
Ordinance - 25
federal environmental quality standards. An Air Contaminant Discharge Permit (ACDP) is
required for the aggregate processing equipment and mining activities on the subject property.
Delta Sand & Gravel currently operates it existing, adjacent, facility under an ACDP issued by
LRAPA (Permit No. 20119) that permits and regulates dust emissions generated by (1)
processing equipment; (2) storage piles; (3) roadways; and (4) yard activities. In addition to the
specific standards for particulate matter emissions that apply to the process operations, the
ACDP includes a requirement to follow the LRAPA-approved Fugitive Dust Control Program
for the existing facility. When Delta Sand & Gravel expands its operations onto the proposed
expansion site, it will implement the Fugitive Dust Control Program on the expansion area to
assure that its operations continue to comply with applicable state and federal air standards.
Wastewater discharge is prohibited under administrative rules and the requirements of the
applicant’s DOGAMI permits. The mining operation requires no onsite systems for domestic
water or sewage disposal.
A reclamation plan has been prepared and is required to be approved by DOGAMI with
respect to restoring land quality. Uses of the reclaimed expansion area will be consistent with all
Goal 5 requirements and will depend on land use regulations existing at that time. The
protection of the expansion area for natural resource activity and the rehabilitation of it for reuse
will maintain the quality of the land.
Therefore, we find that approval of the proposed amendments will not produce results
that will be in conflict with or inconsistent with the purpose and intent of Goal 6.
Goal 7 - Areas subject to Natural Disasters and Hazards.
To protect life and property from natural disasters and hazards.
The expansion area is partially located within an un-numbered A zone of the
Willamette River flood plain as illustrated on the Flood Area Insurance Map (FIRM) (Panel
1126 of 2975, effective June 2, 1999). It is located immediately west of a Flood Insurance
Study (FIS) area that has defined floodways and base flood elevations of the Willamette
River.
Because the floodway for the Willamette River is determined to be substantially east
of the expansion area, the FIS has determined through definition of the floodway that the
expansion area could be completely obstructed without increasing the water-surface elevation
of the 100-year flood more than one foot at any point.
All mining activity proposed for the expansion area will occur as excavation taking
place below existing ground surfaces. Overburden will be removed and stockpiled in areas
with elevation higher than base flood elevations or in areas currently below existing ground
elevations. That mining methodology will preclude the need for sound berms or flood
containment berms that could impede flood flows across the expansion area. Berms
associated with the construction of the aquaclude will be temporary in nature and will be
removed by returning the material to the area of the aquaclude as construction occurs or prior
to anticipated heavy rain events.
Therefore, we find that the proposed use of the expansion area will be consistent with
the purpose and intent of Goal 7.
Goal 8 - Recreational Needs.
To satisfy the recreational needs of the citizens of the state.
We find that there has been a legislative determination by the Metro jurisdictions through
its comprehensive planning process, as implemented by the Metro Plan diagram, that the subject
property is not needed for recreational facilities or opportunities. Identified recreational needs
Ordinance - 26
have been provided for on other sites within the Metro urban area. Therefore, we find that
approval of the proposed amendments are consistent with Goal 8.
Goal 9 - Economy of the State.
To diversify and improve the economy of the state.
Goal 9 is primarily focused on commercial and industrial development within urban
areas. To the extent that the goal is applicable to the application, we find that the proposed
use of the expansion area will contribute to the economy of the Metro area through the
employment of persons and by providing the natural resource for construction, both of which
contribute to the economic health of the state of Oregon.
We further find that the proposed use of the expansion area will provide a stable and
significant source of high-quality aggregate materials and products for use in the Metro area.
Haul distance is a major cost component of the aggregate industry. Provision of sand and
gravel aggregate material in close proximity to the major market assists in controlling the
cost of construction for both private and public users. The continuation of an adequate, long-
term, supply of that material in proximity to its major market will contribute to the economic
health of the community and the State of Oregon.
Therefore, we find that approval of the application will be consistent with the intent
and purpose of Goal 9.
Goal 10 – Housing.
To provide for the housing needs of the citizens of the state.
The primary purpose of Goal 10 is to ensure that sufficient buildable land is available to
provide for a full range of housing needs within the urban area and to avoid creating shortages of
residential land which would artificially restrict market choices in housing type, price range or
location. The subject property has been designated agricultural in the Metro Plan and is not
planned for residential use. There are three dwellings on the property that will eventually be
displaced as a direct consequence of the proposed amendments. We find that approval of the
proposed amendments, and the eventual loss of the three dwellings, will not measurably impact
the existing or future housing stock in the Metro Plan area, nor will they directly result in
population growth, increase the demand for housing beyond previously acknowledged
projections, or otherwise conflict with the purpose and intent of Goal 10.
Goal 11 - Public Facilities and Services.
To plan and develop a timely, orderly and efficient arrangement
of public facilities and services to serve as a framework for urban
development.
Approval of the application will result in a natural resource use of the expansion
area. Significant levels of public services are not required for that use. Approval of the
application will not result in the need for extension of public facilities and services to the
expansion area beyond those existing at the current facility.
To the extent that Goal 11 is applicable to the application, we find that approval
of the application will be consistent with the intent and purpose of the goal.
Goal 12 – Transportation.
To provide and encourage a safe, convenient and economic
transportation system.
The intent of Goal 12 is implemented through the provisions of the State Transportation
Planning Rule (TPR) (OAR 660, Division 12), which was adopted by LCDC in 1991.
Ordinance - 27
OAR 660-012-0060(1) requires that “amendments to functional plans, acknowledged
comprehensive plans, and land use regulations which significantly affect a transportation facility
shall assure that allowed land uses are consistent with the identified function, capacity, and level
of service of the facility.”
We find that approval of the application will not result in any change in the applicant’s
current (and future) use of local roads used for access and egress to it facility. The applicant
testified that the proposed expansion area will only be used by the applicant to provide the
resource that it processes on its existing site into a marketable product. The applicant testified
that no change or modification of the applicant’s existing aggregate processing methodology or
facility will be required as a result of the proposed expansion of its resource extraction site.
Approval of the application will result only in the applicant’s use of the proposed expansion area
as an additional, continual and consistent source of aggregate material needed for the
continuation of the applicant’s business, at its current level of operation and production, at its
current facility. The applicant testified that that use will not result in any increase in the number
of vehicles leaving or entering the applicant’s facility for the purpose of delivering its finished
product to market. That use will not result in an increase in the number of vehicles servicing
applicant’s business. Because no increase in product delivery or service is associated with the
applicant’s proposed use of the expansion area, we find that no Metro area transportation facility
will be significantly affected as a result of approval of the application.
Therefore, we find that approval of the application is consistent with the intent and
purpose of Goal 12.
Goal 13 - Energy Conservation.
To conserve energy
We find that the proposed use of the expansion area will provide a continued stable and
long-term source of sand and gravel aggregate material within close proximity to the Metro area
market. From an energy conservation perspective, an aggregate mining site located within the
Metro area is highly preferable to a supply site located outside the Metro area which requires the
transporting of the material, processed or otherwise, to the Metro area for use. Approval of the
application will result in the establishment of a stable and long-term source of aggregate material
without an increase in energy consumption.
Therefore, we find that approval of the application is consistent with the intent and purpose of
Goal 13.
Goal 14 – Urbanization.
To provide for an orderly and efficient transition from rural to
urban land use.
Only resource use is proposed for the site and no urban facilities or services, other than
those currently provided, are required to support that use.
To the extent that Goal 14 is applicable to the application, we find that approval of the
application would be consistent with its purpose and intent.
Goal l5 - Willamette River Greenway.
To protect, conserve, enhance and maintain the natural, scenic,
historical, agricultural, economic and recreational qualities of
lands along the Willamette River as the Willamette River
Greenway.
The subject property is not located within the Willamette River Greenway. Accordingly,
Goal 15 is not applicable.
Goal 16 - Estuarine Resources.
Ordinance - 28
To recognize and protect the unique environmental, economic,
and social values of each estuary and associated wetlands; and
To protect, maintain, where appropriate develop, and where
appropriate restore the long-term environmental, economic, and
social values, diversity and benefits of Oregon’s estuaries.
The subject property contains no estuarine resources.
Goal 17 - Coastal Shorelines.
To conserve, protect, where appropriate, develop and where
appropriate restore the resources and benefits of all coastal
shorelines, recognizing their value for protection and
maintenance of water quality, fish and wildlife habitat,
water-dependent uses, economic resources and recreation and
aesthetics.
The subject property contains no coastal shorelines.
Goal 18 - Beaches and Dunes.
To conserve, protect, where appropriate develop, and where
appropriate restore the resources and benefits of coastal beach
and dune areas.
The subject property contains no beaches or dunes.
Goal 19 - Ocean Resources.
To conserve the long-term values, benefits, and natural resources
of the nearshore ocean and the continental shelf.
The subject property contains no ocean resources.
7.0 INTERNAL CONSISTENCY OF METRO PLAN
As mentioned previously in Section 3.0 of this application, The Metro Plan has not been amended to
adopt procedures and requirements consistent with the Goal 5 Rule for the consideration of PAPAs
regarding the designation of significant aggregate sites. The Lane Code and the Eugene Code do
not contain specific criteria regarding the consideration of a PAPA proposing to add a site to the
Metro Plan’s acknowledged list of significant aggregate sites and have not been amended to
conform to the requirements of the Goal 5 Rule through periodic review. Therefore, only the
provisions of the Goal 5 Rule are directly applicable to Eugene and Lane County’s consideration of
this application. Metro Plan goals and policies and land use regulations of Lane County and the
City of Eugene are not applicable to this application.
9.0CONCLUSION
We find that this application to amend the Metro Plan to designate the subject property as Sand
and Gravel and include the subject property in the Metro Plan Goal 5 Significant Aggregate Site
Inventory and to change the zoning of it to Sand, Gravel & Rock Products demonstrates that all
applicable criteria have been addressed and met. We further find that this application
demonstrates that the proposed amendments are consistent with applicable Statewide Planning
Goals and Administrative Rules implementing those Goals. This application is approved.
Ordinance - 29
ATTACHMENT E