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Appellants argue procedural defects, substantive issues with mobile plant proposed on aggregate mining site

CENTRAL OREGONIAN - The Crook County Court will make a decision on the appeal on April 3.

Opponents of a controversial mobile asphalt plant proposal appealed a planning commission approval of the project in late December.

The appeal hearing was held last week in front of the Crook County Court, the governing body tasked with making a decision on the appeal. Both the applicant and the appellants were represented by attorneys who presented the majority of the arguments for and against the proposal.

No official decision emerged after the approximately 90-minute session, as the county court opted to take the voluminous content of the hearing under advisement, review the arguments, then make a decision at the next county court meeting, which is scheduled for April 3.

Applicant Clint Woodward requested a conditional use permit modification to allow the addition of a mobile asphalt plant on an existing aggregate site on Paulina Highway near Prineville. The mobile plant was previously operated at Juniper Rock Products at the base of Juniper Canyon, about six miles northwest of the proposed site. Woodward also wants to use the site to recycle asphalt.

Woodward said during the appeal hearing that he bought the aggregate site property five years ago and finally moved onto the site this past year.

"When we bought it, we always had the idea we wanted to have it permitted to allow an asphalt plant for future jobs," he said. "Along with that, I wanted to be able to import inert construction materials and be able to process those."

The appellants' attorney, William Sherlock who practices in Eugene, cited several procedural defects by the planning commission in the appeal as well as multiple substantive issues that he believes are grounds for rejection of the proposal or remand to the planning commission for further review.

"The first issue is that the planning commission failed to notify the participants of the right to request that the record be held open," Sherlock said in reference to the first public hearing held on the proposed asphalt plant.

He explained that the planning commission upon opening the hearing is supposed to identify the rights, restrictions or limitations for those giving testimony, whether that is related to timing, or the ability to ask for a continuance of that hearing, or that the record be held open.

"That did not happen in this case," he said. "The appellants, in particular (Kristy) Cooper, was not allowed to submit additional rebuttal evidence to the information that was provided at the initial evidentiary hearing. Moreover, Ms. Cooper was prevented from submitting additional evidence even though the commissioners had allowed the applicant and the (planning) staff to accumulate additional evidence, including a site plan as well as another staff report that identified all of the conversation staff had had with DOGAMI (Oregon Department of Geology and Mineral Industries) representatives and DEQ (Oregon Department of Environmental Quality) representatives relating to the very issues Ms. Cooper was trying to raise in her rebuttal arguments."

Sherlock went on to argue that the planning commission failed to disclose ex parte contact relating to a site visit that included county planning staff and the applicant, but not any other potentially interested parties, including Cooper.

"That information was not revealed at the start of the planning commission's evidentiary hearing, which is a pretty clear violation of LUBA (Land Use Board of Appeals) case law and state statutes related to the right of the public to know what is going on," he said. "There was no disclosure of what they saw. There was no disclosure of what they talked about with the applicant."

County Planning Director Ann Beier later addressed the site visit, stating that she had sent notice of the visit to any neighbors within 750 feet of the property boundary of the site. The appellants in attendance said that none of them received a notice.

Regarding the site visit content, Beier stressed that the discussions at such events are limited to the site itself and that staff and commissioners are not allowed to talk about the criteria the planning commission will later consider.

In response to the accusations about procedural errors, Woodward's attorney, Steve Hultberg, who is based in Bend, argued that the best way to correct those errors was supplement the record and continue the public hearing for a period of 60 days.

He went on to note that the appellants rejected the idea, leading Hultberg to conclude that they had in essence waived the procedural arguments.

"What they have argued in essence is that the planning commission made some procedural errors," he said. "Had the county court opened the record, allowed the parties to supplement the record, all of those procedural issues would have been addressed through that process. Because they have objected to basically a new hearing on new evidence, I believe that they have waived the procedural arguments."

Sherlock disagreed, saying that by rejecting a de novo hearing, the appellants are "trying to keep this process streamlined as the (county) code intends."

"The code very clearly states that this is not a new hearing," he added. "This is a review of the planning commission decision."

The appellants' attorney went on to say that the Woodward did not meet all of the requirements under county code to gain planning commission approval of his proposal. He stressed that information on the handling of storm water and other environmental concerns were punted to other agencies such as DOGAMI or DEQ when the county code states things like storm water plans "shall" be included in the application.

Sherlock added that no analysis or determination was provided regarding the amount of water needed for dust abatement during the rock crushing portion of the operation. Woodward has said a water truck will be on site, but Sherlock questioned whether that would be enough.

"How much water is available? Where is the water coming from?" he asked.

Regarding the water concern, Hultberg argued that the county code does not require information about such things as water availability, but rather asks what the impact will be on public resources.

"In other words, will they be obtaining water from the city or county? Are they utilizing police forces, emergency services, those types of things?" he said. "The appellants have tried to flip that on its head and say they haven't explained how much water you need. That is not the question being asked by the county code. Where water is provided on site or through trucking, there is no impact to these public facilities."

Responding to deferred analyses for storm water and other environmental concerns, Hultberg agreed that such information should be part of the application. However, he contends that it is not always realistic to provide it ahead of the land use hearing process.

"You can't show DEQ approval until DEQ sees that we have approval for the site," he said. "It's one of those things that can be shown afterward, and it's a very appropriate condition of approval. Oftentimes, applications are approved and criteria are met, and there are then things to formalize the decision at a later date."

The appeal also challenges the approval on the basis that the ESEE (Economic, Social, Environmental and Energy) analysis for the site in question was out of date.

"The original ESEE analysis in this case (completed in 1995) only dealt with the mineral extraction part of the operation," Sherlock argued. "There was no contemplation at that time of an asphalt batch plant."

He went on to note that such plants, by their very nature, are controversial and tend to bring scrutiny to the potential environmental and socio-economic impacts. He therefore contended that an updated and more comprehensive ESEE analysis that addresses the aspects of this operation is necessary to approve the site for asphalt production.

Hultberg in response argued that the county's comprehensive plan identifies the property as a significant aggregate site, and therefore identifies it as site for both mining and processing. He singled out the processing term in particular, asserting that asphalt production meets the definition of processing.

"Processing is a term … defined by county code and more importantly by state statute," he said. "State statute defines processing as 'including but not limited to crushing, washing, milling and screening as well as the batching and blending of mineral aggregate into asphalt."

Sherlock disputed this conclusion, stating that the processed material must be naturally occurring on the site. Because Woodward wants to incorporate recycled material, which would come from areas offsite, he concluded that the asphalt production at the site would not fit the "processing" definition.

He went on to argue that while the county code allows processing, the county comprehensive plan classifies processing with the use of recycled materials from offsite locations as a heavy industrial use, which bars it from occurring on the exclusive farm use land the site is located.

Sherlock went on to say that the county comprehensive plan is essentially the constitution for the county and should therefore trump what county code says regarding asphalt processing.

Hultberg disagreed, stating that the county's development code implements the comprehensive plan, so unless the approval criteria mandates consistency with policies in the comprehensive plan, the specific provisions in the code, which allow for processing on site, control approval.

He went on to challenge the comprehensive plan argument, noting that the cited language does not necessarily relate to exclusive farm use land or specifically to asphalt processing.

"They have taken language from the comprehensive plan and tried to shoehorn it into an argument that prohibits this use," he said.

Regarding the assertion by the appellants that processing is only allowable with materials naturally occurring on site, Hultberg argued that it is impossible to process asphalt without bringing in materials from other locations.

"The notion that you cannot bring anything on site to batch with the aggregate to turn it into asphalt disregards the fact that you need materials from offsite such as oils and other chemicals to make asphalt," he said.

Another argument raised by the appellants is that the planning commission needs to consider farm and forest practices in the surrounding area when considering approval of the site. Hultberg agreed and went on to state that such considerations were made.

"There is evidence in the record that the only surrounding land use is grazing. The entire 80-acre property is surrounded by grazing lands," he said.

Hultberg went on to acknowledge testimony given by opponents that they had farm practices in the area. While he did not dispute that neighboring residences are likely growing crops in the area, he singled out the term "farm practices" and argued that according to statute it did not apply to any of those residences.

"It doesn't mean that someone has a vegetable garden," he said. "A farm practice is one that you employ the land for the specific and primary purpose of creating a profit … through the raising of crops. The evidence in this case shows that those things that other people have on their property are thousands and thousands of feet away from the (proposed) asphalt plant, but more importantly, they don't qualify as farm practices."

While Cooper did not directly state that her property should fall under the definition of farm practice, she did say that she grows and sells organic vegetables and herbs, and that emissions from an asphalt plant would prevent her from doing future business.

She pointed out that no chemicals – "nothing from the sky" – can land on her vegetables or else she can no longer sell them as organic.

To punctuate her point that the emissions can be harmful, she pointed out that the Oregon Legislature once passed a law prohibiting an asphalt plant within two miles of a vineyard. She said the law came as the result of a vineyard owner whose grapes were killed by asphalt plant emissions. He filed a lawsuit as a result of the damage and won, she said.

"That just goes to show you that it's going to kill the hemp (crops in the area) or put chemicals on it and put chemicals on my vegetables."

Another nearby neighbor of the aggregate site, Darlene Hansen, likewise said the plant would hurt local businesses.

"You have got organic hemp farmers, you have an organic beekeeper, you have got people who make their livelihood in this farm use only area. That's the reason they moved here," she said. "But for the greed of one man, you guys are going to let him put an asphalt plant in there and put people out of business."

Speaking in favor of the proposed plant, Scott Smith, the city's street supervisor, stressed that site would not be like a Knife River or High Desert Aggregate operation that runs every day of the year and produces more than 3,000 tons of asphalt a day.

"This is select times. It is going to have its select customers," he said. "It's more of a convenience for different developers here and even our local governments."

Smith went on to question whether the asphalt plants are as dangerous to people or agriculture as the appellants have claimed.

"I hope the county court understands that if this proposed asphalt plant incorporating a little bit of recycled asphalt was in the Powell Butte area, these folks probably wouldn't be appealing this. We don't want it here, but it can be there," he said. "If it's as dangerous and hazardous as what's being led to believe, I would think that our nation would go to strictly concrete roads."

When the county court revisits the appeal during its April 3 Crook County Court meeting, it can choose to either affirm, overrule or modify the proposal. The court could also remand the decision to the county planning commission with instructions to consider additional facts, issues or criteria not previously addressed.

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