Following the Curry County Planning Commission’s denial of a conditional-use permit Aug. 15 for a gravel extraction project on the Pistol River, applicant Ron Adams has filed an appeal.
The commissioners will hold a special hearing at 10:15 a.m. Wednesday in the Board of Commissioners chambers in the Curry County Courthouse Annex on Moore Street in Gold Beach. It will be a “de novo” hearing, meaning it will start from scratch without relying on any prior factual findings or legal conclusions.
Meantime, on Nov. 14 at the Friendship Hall in Pistol River, local resident Eleanor Foskett put together a forum for the community to “define, prioritize and confront the issues.” The issues listed in the forum’s invitation included property degradation, the condition of the river and needed repairs, flooding, environmental issues, and fish and wildlife matters.
Approximately 65 people from the community and surrounding areas showed up at the forum.
The community has a lot at stake, given the condition of the Pistol River watershed, but one possible solution to fix those issues has nearly ground to a halt after exhausting the planning commission process.
A 2014 NOAA Fisheries document (PistolRiverSONCCPlan) cites “lack of floodplain and channel structure” as one of the “key limiting stresses for coho salmon recovery” in the Pistol River. The document describes longtime residents’ recollections of the river having 20-foot-deep pools and water too cold to swim in during the summer, neither of which is evident today nor when the report was written.
The floodplain now is filled with sediments and gravel deposits, which are a result of heavy logging activity in the watershed going back to the 1950s, according to the report.
Several local agencies “with knowledge and the ability to help” were invited to make presentations at the meeting in Pistol River. Some of the invited groups had filed objections with the planning commission about Adams’ conditional-use application, mostly because of the lack of detail in his proposal.
At the same time, those groups and agencies offered ways to help, including guidance - and even fundraising - to assist Adams’ gravel proposal through the complex process of government approvals.
Mark Sherwood, a Pistol River resident and executive director of the Native Fish Society; Ann Vileisis of the Kalmiopsis Audubon Society; Miranda Gray, coordinator of the South Coast Watershed; Drew Harper, riparian restoration coordinator for the Curry County Soil and Water Conservation District; and Ann Schmierer, executive director of Wild Rivers Land and Trust, made brief presentations about what each agency could offer to help solve the issues surrounding the Pistol River community’s problems.
Sherwood had written in an Aug. 1 letter that he would be “happy to help Mr. Adams connect with our local habitat restoration practitioners who would be able to help him put together a scientifically defensible restoration plan for his property.”
Sherwood says he is “both professionally and personally invested in the revival of abundant wild fish in my home river,” but could not support Adams’ application without more specific details about the restoration work or the gravel extraction details. During the Pistol River meeting, he told a story of how his organization assisted another landowner on the Siletz River.
For Adams, however, the need to fix the problem is more urgent than the additional years it could take, over what he already faces, to get through the processes proposed by Sherwood. “I just think they are putting too big a burden on the applicants,” Adams said.
Adams had pointed out during the hearing process that it will take him time to get approval from all of the agencies involved, and he would likely be back to renew the permit (three years) before it “ever gets used.”
From Adams’ viewpoint, approving the application would give him a green light “to take the first step.”
The Pilot confirmed with Oregon Department of Fish and Wildlife (ODFW) salmon and trout enhancement program biologist John Weber that the process is complicated and lengthy to get approval for a gravel extraction operation in an estuary.
In addition to satisfying county ordinances and meeting community concerns, the project would also need approval from the National Marine Fisheries Service, the U.S. Army Corps of Engineers, ODFW, the Department of State Lands, and the Department of Geology and Mineral Industries.
Several gravel companies operating in this area have been able to meet all the requirements, he said. “Usually, those gravel removal projects (in estuaries) that are existing are pretty low-impact,” Weber said.
Although he said he was not familiar with this specific project, he agreed there’s potential for a gravel scalping operation to actually improve the habitat. It could expand the size of the estuary, which would provide more habitat for chinooks while they remain in the estuary during the summer, he said.
The lengthy application process started last May when Adams filed an application to remove gravel for sale on two parcels he owns that are located above the Pistol River Bridge on Pistol River Loop Road.
In his application, Adams states, “The impact of this operation should be mostly positive. The waterway of this area of Pistol River has been in disarray for many years. The river has eroded hundreds of feet of river bottom away on the south side of the river causing it to fan out, many times its natural width. That’s causing water temperatures to rise, which kills fish, algae growth which lowers oxygen levels in the water and removes safe fish habitat.”
Adams goes on to state he “will work with fish and wildlife to make improvements” and “rehabilitation will be to comply with ODFW to make it better than when we started.”
At the June 20 planning commission meeting, planning director Becky Crockett said the property has a history of being a gravel extraction resource and is noted as a Goal 5 resource in the county’s comprehensive plan. A previous approval had been granted for the site (involving a different applicant), but was revoked when licenses and permits were not obtained within a specified time.
According to the meeting summary, Crockett advised that “the application lacks details and there has been only limited agency coordination.”
Neighbors turned out to make public comments against the project, which ranged from concerns about noise and dust, to quality-of-life and property values, road and bridge conditions, and worries about the river and environment.
No one came to the meeting to support the proposal.
The hearing was held open by request to receive more public input. Adams submitted answers to the comments received, and on July 25 the planning commission re-opened the record for an additional seven days for “interested persons to respond to the new evidence” Adams had submitted.
The Pilot asked Crockett for clarification on the final decision. “The decision made by the planning commission focused specifically on whether or not the applicant had adequately satisfied the required land-use criteria for proposing a gravel extraction operation along the Pistol River, as set forth in the Curry County zoning ordinance,” Crockett said.
“The (planning commission) determined that the applicant had not presented enough site-specific information to address many of the environmental issues required to be addressed by the county.
“Oregon statute and the (zoning ordinance) require that land-use decisions be supported by factual findings.”
When asked what Adams could have done differently with his application, Crockett responded, “What I advise folks who come in to the planning department on a potential land-use application is, to make sure that they include thorough findings for all of the applicable criteria set forth in the (zoning ordinance).
“The county’s application states that it is the responsibility of the applicant to address the criteria with findings. Specifically, our application states, ‘The burden of proof is on the proponent; therefore, it is required that the application provide findings to support the request’ and, ‘These findings must be sufficiently specific to allow the decision maker to determine whether your request meets the relevant standard.’
“The (planning commission) stated that there was not adequate information in the application or presented by the applicant to make the required land-use findings to approve the application. The (zoning ordinance) does not include a provision for a ‘preliminary process’ or permit.”
In Adams’ appeal, he identified the specific appeal issue for denial as, “The County Counsel told the planning director, the planning director told the planning commission that this would be appealed to LUBA, and LUBA would overturn the permit, so the planning commission had no choice except to deny the permit. So, without any discussion or input from the applicant, it was denied outright.”
Adams continued, in part, “Most of my information for this application was never even given to the planning board because of the county counsel’s concern over LUBA overturning the planning board’s decision. Any input that I was able to inject was limited to my reminding the planning commission that I was asking for a preliminary permit.”
“There was absolutely no discussion by the (planning commission) or staff regarding the potential for an appeal to LUBA for this application,” Crockett said. “The focus of land-use review of any application is the (zoning ordinance) and state statute governing land use.
“The references to LUBA were made in the memo by the assistant county counsel to provide legal context to the need to make adequate findings in accordance with the (zoning ordinance). It was not to point out any potential for the Adams application to be appealed to LUBA.”
In an interview, Adams complained about the lack of clear, written procedures in the hearing process. “The first thing they said to me when I started to lay out my plan (at the planning commission meeting) is, ‘You’ve got 15 minutes’ and I said, ‘I don’t think I can do this in 15 minutes.’ So anyway, it screwed up my whole presentation, and I just put it down.
“Then every time I would go to talk, the county counsel would tell me I couldn’t talk. And I would say, ‘Why can’t I talk?’ and counsel would say, well, ‘Because I’ve closed that.’”
Adams said he plans to present the new evidence he was not allowed to enter into the record because of the planning commission’s hearing rules when he appears at the county commissioners’ de novo hearing Nov. 20.
To review the planning documents and submissions to date, visit http://www.co.curry.or.us/government/planning_commision. Follow this developing story here online and in the Tuesday and Friday print editions of the Pilot.