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HomeMy WebLinkAboutItem C: Delta Sand and Gravel Metro Plan Amendment ECC UGENE ITY OUNCIL AIS GENDA TEM UMMARY Work Session: Delta Sand and Gravel Metro Plan Amendment Meeting Date: April 18, 2007 Agenda Item Number: C Department: Planning and Development Staff Contact: Kurt Yeiter www.eugene-or.gov Contact Telephone Number: 682-8379 ISSUE STATEMENT Delta Sand and Gravel made application to the County requesting 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) but inside the Metro Plan boundary, along East Santa Clara waterway 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 will act unilaterally on the zone change and variances. After the public hearing closed, the County requested that the City Council finish its deliberations first. At its February 21, 2007, work session, the City Council tentatively decided on a 5-4 vote that the application did not meet the test as a significant resource site. At this meeting, the City Council is asked to review draft findings in support of its tentative vote. If the council concurs with the proposed findings and conclusion, final action will be requested as a consent item on a future agenda. BACKGROUND The applicant, Delta Property Co., 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 Statewide Planning 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 and Gravel.” If the Metro Plan amendments are approved, the County will independently then consider 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. The variance, in addition to the zone change request, is a County-only decision. To become final, the decisions of both the City of Eugene and Lane County must be identical; that is, the decision to approve or deny must be the same by both bodies. If the decisions are not the same, the Metro Plan amendment will be referred to the Metropolitan Policy Committee (MPC) for dispute resolution. Pursuant to staff recommendation, the City Council was using nonbinding straw votes in its deliberations until the Lane County Board of County Commissioners had also deliberated. L:\CMO\2007 Council Agendas\M070418\S070418C.doc On February 21, 2007, the City Council tentatively decided that there was insufficient evidence that the site contained significant resources. A decision that there is not a significant resource on the site could potentially end the approval process. Therefore, after the City Council’s straw vote, City and County staff met and the County staff suggested to the County Board that it would be efficient if the board, too, discussed the significance of the resource site. During a work session on March 14, 2007, the board declined to proceed with its deliberations, preferring that the City Council continue independently. Staff prepared the attached draft findings to support the City Council’s tentative decision. If the council agrees with the findings, it may act by adopting them after they are reformatted for adoption (at a later date). That decision would then be forwarded to the County. If the council cannot support these draft findings or, upon review, believes that the site may have significant resources, then staff will schedule time for further discussion and deliberation on future agendas. Exhibits from the record referenced in the draft findings may be found in the Council Office. 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. The Metro Plan offers these policies: 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. 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) COUNCIL OPTIONS The City Council has the following options: 1.Direct staff to finalize the attached findings supporting the City Council’s tentative vote that there is insufficient evidence that the site contains significant resources; 2.Direct staff to amend the findings prior to adoption; 3.Request that staff gather more information from the record regarding significance of the site; 4.Decide that the findings cannot be supported (i.e., because on further review there is sufficient evidence that there are significant resources on the site) and ask the City Manager to schedule work sessions for continued deliberations on the remaining issues; L:\CMO\2007 Council Agendas\M070418\S070418C.doc 5.Decide to proceed with deliberations on all issues (e.g., noise, dust, traffic) prior to taking final action, after which staff will schedule additional work sessions; or 6.Move to direct the City Manager to schedule a joint meeting or joint deliberations with the Board of County Commissioners before taking City action on any issue. CITY MANAGER’S RECOMMENDATION The City Manager recommends that the council direct staff to prepare for adoption the attached findings, which reflect the tentative vote from February 21, 2007 (Option 1, above), and schedule adoption on a future consent calendar. SUGGESTED MOTION Move to direct staff to prepare a resolution that finds that there is not sufficient evidence that a significant resource exists on the subject site consistent with the attached draft findings. ATTACHMENTS A. Draft Findings B. PAPA Review and Decision Process (decision tree) C. Vicinity map FOR MORE INFORMATION Staff Contact: Kurt Yeiter, Principal Planner Telephone: 541/682-8379 Staff E-Mail: kurt.m.yeiter@ci.eugene.or.us L:\CMO\2007 Council Agendas\M070418\S070418C.doc ATTACHMENT A DRAFT FINDINGS DELTA SAND AND GRAVEL (MA 07-01) (Criteria and statutory requirements are shown in italics, draft findings following those requirements are shown in standard font) Metro Plan Amendment OAR 660-023-180(2): “Local governments are not required to amend acknowledged inventories or plans with regard to mineral and aggregate resources except in response to an application for a PAPA, or at periodic review as specified in Section (9) of this rule. This proposal is a request for a Post Acknowledgement Plan Amendment (PAPA) to add this site to the significant Mineral & Aggregate Resource Inventory. The property owner submitted the application as a PAPA in August 2005. Eugene Code 9.7730(3): Criteria for Approval of Metro 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. Review for conformance with the Statewide Planning Goals and the Oregon Administrative Rules would follow later as part of the Post Acknowledgement Plan Amendment and Goal 5 consistency findings. The City of Eugene is required to comply with the Oregon Administrative Rules (OAR’s) that implement the Statewide Planning Goals. Metro Plan Policy is implemented by identifying significant aggregate Goal 5 sites as Sand & Gravel Resources by Plan Designation and the appropriate zoning pursuant to the Goal 5 Rule. If the City cannot find consistency with the Goal 5 Rule (e.g., if the site cannot be found to contain a significant resource), then subsection (a) would not be met because the amendment would not be consistent with the relevant Statewide Planning Goals and the Metro Plan amendment cannot be approved. Post Acknowledgement Plan Amendment (PAPA) to Add Subject Site to the Significant Mineral & Aggregate Resource Inventory Step 1. Determine if the PAPA information is adequate. OAR 660-023-0180(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 660-023-0300 except as modified by subsection (b) of this section with respect to aggregate sites. When a local government is following the inventory process for a , mineral or aggregate resource site under a PAPAit shall follow the requirements of OAR 660- 023-0030, except where those requirements are expanded or superceded for aggregate resources as provided in subsections (b) through(d) of this section and sections (3), (4), and (8) of this rule; The Eugene City Council is following the inventory process for a mineral or aggregate resource site under a PAPA pursuant to this requirement. OAR 660-023-0300 (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: (a) Information regarding quantity, quality, and location sufficient to determine whether the standards and conditions in section (3) of this rule are satisfied; The determination of site significance due to quality, quality, and site location as contiguous to an existing mining operation is discussed in detail under Step 2, below. (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) The expansion site is proposed for consideration as an amendment to the File Record No. reclamation plan approved by DOGAMI in 1987 and 1995. See 17 and Exhibit 49. (c) A traffic impact assessment within one mile of the entrance to the mining area pursuant to section (5)(b)(B) of this rule; Lane County Transportation Planning waived the traffic impact analysis requirement under LC 15.697 (1) because, in part, substantial improvements to the road system in this area are planned and scheduled out for the next twenty years in transportation system plans. File Record No.Exhibit 30 See . City Council deliberations did not progress to the point of deciding whether the waiver was satisfactory. (d) Proposals to minimize any conflicts with existing uses preliminarily identified by the applicant within a 1,500 foot impact area; and Proposals to minimize conflicts with existing uses are included in the application and identify the potential conflicts that have been considered in the public involvement process. Step 3 analyzes the conflicts minimization proposals in depth, but City Council deliberations did not advance beyond Step 2. (e) A site plan indicating the location, hours of operation, and other pertinent information for all proposed mining and associated uses. There is a site plan in the application. The application was supplemented by materials provided through two public hearings and an extended period for open record. The Eugene Planning Commission found unanimously that there was adequate information submitted in the PAPA application. The Lane County Planning Commission voted 4-2 that there was adequate information submitted in the PAPA application. The Eugene City Council finds that the application contains materials sufficient to satisfy OAR 660-023-0300 (8) for purposes of completing Step 2 requirements. STEP 2: SIGNIFICANCE OF THE RESOURCE 660-023-0180 (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. Lane County determined that the criteria in section (3) of this OAR are applicable to this PAPA application. The criteria in section (4) of this OAR are not mandatory. 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: (a) A representative set of samples of aggregate material in the deposit on the site meets the 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; OAR 660-023-0180(1) (a) defines "Aggregate resources" as naturally occurring concentrations of stone, rock, sand gravel, decomposed granite, limestone, pumice, cinders, and other naturally occurring solid materials commonly used in road building or other construction.” This rule requires review of two characteristics of the resource: quantity (2,000,000 tons) and quality (must meet ODOT standards). The record contains expert geologic testimony on both sides of these issues. The applicant’s analysis by EGR and Associates was reviewed by another certified geologist and DOGAMI, and the SCRO resource geologist reviewed the data and submitted comments. 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. Quantity: 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 cubic 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 tons on the 53 acre site. DOGAMI estimates did not subtract silt and clay occurrences, which may not represent separate layers and may be treated as internal waste in the production Exhibit 144 phase (). Quality: The set of standards addressing quality is found in the Oregon Department of Transportation (ODOT) Standard Specifications for Highway Construction for base rock for air degradation, abrasion, and sodium sulfate soundness. The appropriate Test Method for abrasion is AASHTO T 96 and for degradation is ODOT TM 208. These test methods were used by Professional Service Industries, Inc. to analyze the aggregate material. ODOT staff confirmed that there are no ODOT specifications for sodium sulfate soundness for base rock. ODOT specifications for sodium sulfate soundness exist only for portland cement concrete (PCC) and Asphalt Concrete (AC Aggregate). The appropriate Test Method is identified as ODOT TM 206. This test method was used by the applicant. The applicant’s report included studies conducted for the applicant by EGR & Associates, Inc. The original sampling methodology is described in Exhibit 1, Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area, by EGR & Associates (June 2005). Issues raised under the quality criterion include: ?adequacy of methodology used to test the material ?adequacy of bore hole coverage ?adequacy of the data recorded from the samples taken A copy of the EGR report was attached as an exhibit to the application. EGR’s data draws on general geology studies; three borings conducted in 2004, two that were 81 feet deep and one 94 feet deep; well logs; a sampling of Delta Sand and Gravel’s west pit wall, which borders the subject site’s eastern perimeter with a height of approximately 65 feet, and on past excavation to a depth of 100+ feet on an adjoining site, previously permitted for gravel extraction. EGR confirmed the existence of Class II loam, sandy loam, and clay loam soils on approximately 75 percent of the expansion site. Aggregate resources could be found to an average depth of 70.5 feet. Samples of the gravel from the three boring holes and the pit wall (taken at 5 foot intervals) were analyzed in a laboratory for compliance with ODOT specifications. One representative composite aggregate sample for each sample site was provided by combining samples from the upper, Exhibit 1 middle, and bottom zones (). Two size distributions were obtained of the samples. Tests conducted by Professional Services Inc. (PSI) concluded that the coarse aggregate fraction meets the base rock standards of ODOT. The fine aggregate fractions from the boring holes BH 1 and BH 2, and the pit wall samples did not meet ODOT specifications. Applicant’s materials confirm that the older gravel from lower in the ground is of lesser quality, but contend that on the Exhibit 66 expansion site even the lower (deeper) resources meet ODOT standards (). Staff noted concern that the analysis of the overall quality of the aggregate material on the proposed expansion area may be based on too few actual borings and the report relies heavily on the existing pit wall analysis and extrapolation that the material in the existing pit operation is comparable to the expansion site. A review of the applicant’s analysis by Mark H. Reed, Ph.D., Mineral Resource Geologist, Department of Geological Sciences at the University of Oregon, concludes that the samples were not “representative,” and do not provide “adequate information” as required by the state rule. His concerns include the mixing of concrete-grade rock from the shallow layer with poorer quality gravels from the deeper layers, thereby diluting the poorer quality rock with the lesser-in-quantity high grade rock; discrepancies in the BH-3 boring hole log data; and failure to follow best practices for sampling. Dr. Reed provided excerpts from Army Corps of Engineers, ASTM, and AASHTO standards that suggest that samples should allow visual inspection of the discernable strata, and that individual samples from each stratum should be obtained where there is variation between strata in order to assure that the samples are representative of the site’s material. By mixing materials from geologically and mechanically distinct layers, Dr. Reed contends that the samples are no longer representative of the resource quality. He provided in the record examples of the differences between the “younger” and “older” layers. He asserts that the site’s sampling “are not Exhibit representative, therefore the fact that they pass the ODOT standard is of no consequence” ( 33a, pages 1-7 ). He further states that only 19 percent of the deeper gravel thickness was tested Exhibits 62 and 262 (). Discrepancies in Boring Hole 3’s geologic log data call into question the thickness of the different layers, such as the thickness of the sand and gravel layers. Dr. Reed’s testimony suggests that if the log of one of the entire three boring holes is erroneous, it calls into question the validity of the other two boring tests as well. Since the logs of the boring holes form the factual basis of the determination of sufficient thickness of the resource, the applicants may not have provided adequate information to support this criterion. Dr. Reed also notes that the existing excavation pit (located immediately easterly of the expansion site) does not provide historic data for comparison Exhibit 62 or extrapolation to the expansion site (), even though, as the applicant contends, the original site would not have been continuously mined had the materials not been of sufficient quality. (b) The material meets local government standards establishing a lower threshold for significance than subsection (a) of this section; or This provision is not applicable because Lane County has not established a lower threshold for significance than Subsection (a) above. (c) The aggregate site is on an inventory of significant aggregate sites in an acknowledged plan on September 1, 1996. This provision is not applicable because the expansion site has not been included on the inventory of significant aggregate sites of the Metro Plan. (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 soils on Natural Resource and Conservation Service (NRCS) maps on June 11, 2004; or This provision is not applicable because there are no Class I soils on the site. (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: (i) 60 feet in Washington, Multnomah, Marion, Columbia, and Lane counties; The area of Class II soils on the expansion site exceed 35 percent; therefore, the aggregate site cannot be considered significant unless the average thickness of the aggregate layer within the mining area exceeds 60 feet in Lane County. “Thickness of aggregate layer” is defined above as “the depth of the water-lain deposit of sand, stones, and pebbles of sand-sized fraction or larger, minus the depth of the topsoil and nonaggregate overburden.” The applicants’ report concludes that the average cumulative width of the aggregate layer is 70.5 feet with a maximum overburden of 4 feet. The applicant’s determination of the aggregate deposit width was based on two methodologies: averaging the thickness (width) of the gravelly bearing material (excluding overburden, sand only, and clay) from the three boring logs and pit wall, and extrapolating the boring results to the full expansion area. Exhibit 33 Dr. Reed () questions the applicant’s assertion that the average thickness of the aggregate layer exceeds a 60-foot depth. He contends that the actual depth of quality gravel cannot be accurately ascertained due to mixing of the various layers within each. DOGAMI notes that several operations encounter 10 – 15 foot thick seams of clay, which may be mixed with aggregate and treated as internal waste during Exhibit 144 production (). Dr. Reed notes that the DOGAMI evidence confirms that differences may exist between younger and older (shallower and deeper) resources and that the DOGAMI testimony did not address overall quality of the resource materials or representative testing methods for determining whether ODOT standards are met. Discrepancies in Boring Hole 3’s geologic log data identified by Dr. Reed call into question the thickness of the different layers, such as the thickness of the sand and gravel layers. Dr. Reed’s testimony suggests that if the log of one of the entire three boring holes is erroneous, it calls into question the validity of the other two boring tests as well. Since the logs of the boring holes form the factual basis of the determination of sufficient thickness of the resource, the applicant may not have provided adequate information to support this criterion. Based on the information before them, four Lane County Planning Commissioners and two City of Eugene Planning Commissioners voted that the sampling method for the quality analysis of the aggregate was inadequate to determine significance of the resource pursuant to OAR 660-023-180 (3). Conclusion: The Eugene City Council considered the record established by the Planning Commissions and additional evidence presented during a subsequent public hearing and extended period of open record. A sample of relevant evidence is listed below. A preponderance of evidence regarding the quality of the resource references testing methods and professional standards (Army Corps of Engineers, ASTM, and AASHTO) that may be applied. Both the applicant and opponents essentially relied on the same standards for their arguments, but reached different conclusions. The Eugene City Council concludes that there is insufficient evidence in the record to support a decision that a representative set of samples of aggregate material in the deposit on the site meets the applicable Oregon Department of Transportation (ODOT) specifications for base rock for air degradation, abrasion, and soundness (OAR 660-023-180 (3)(a)) or that the average thickness of the aggregate layer within the mining area exceeds 60 feet in this Lane County site (OAR 660-023-180 (3)(d)(B)(i)). Therefore, the City Council cannot find that the subject site is a “significant aggregate site” pursuant to OAR 660-023-180 (3). Elaboration of the issues are found in the following submittals: Exhibit 1 -- Evaluation of Aggregate Resources: Delta Sand and Gravel Expansion Area, by EGR & Associates, Inc. in the original application. File Record No. 18 – Memo from Shane Hughes, PE, EGR & Associates, Inc. Exhibit 19 – Letter from Mark H. Reed, Mineral Resource Geologist. Exhibit 33a -- Testimony of Concerned Santa Clara Residents Organization (SCRO) on Delta Mining Expansion Proposal – Mark H. Reed testimony in response to EGR analysis (ASTM Standard Practice for Sampling Aggregates) Exhibit 46 – Letter from Karen Reed Exhibit 47 – Letter from Ralph Christensen, Senior Geologist, EGR & Associates, Inc. (ASTM Standard Practice for Sampling Aggregates) Exhibit 50 – letter from Steve Cornacchia Exhibit 62 – Letter from Mark Reed Exhibit 66 – Applicant’s final rebuttal to Planning Commissions, 03/31/06 Exhibit 144 – DOGAMI geologist review of onsite aggregate deposit, 10/30/06 Exhibit 216 -- Sample Log of bore hole & pit wall profiles from ODOT, illustrates resource configuration & significance, 11/01/06 Exhibit 262 – testimony from Mark Reed, 12/12/06