HomeMy WebLinkAbout2021-10-20 (for 2021-10-27) Board Staff Memo Thornburgh 937-A, 731-A
117 NW Lafayette Avenue, Bend, Oregon 97703 | P.O. Box 6005, Bend, OR 97708-6005
(541) 388-6575 cdd@deschutes .org www.deschutes.org/cd
COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Board of County Commissioners
FROM: Angie Brewer, Senior Planner
DATE: October 20, 2021 for October 27 Board Session
RE: Board Order 2021-059
Decision whether to hear appeal of Hearings Officer’s approval of an application on
remand from LUBA and Oregon Court of Appeals to establish Phase A-1 of the
Thornburgh Destination Resort
On October 27, 2021, the Board of County Commissioners (Board) will consider whether to hear
appeal 247-21-000937-A of Hearings Officer remand decision 247-21-000731-A. The Hearings
Officer decision addresses a limited scope of issues on appeal and approves the first phase of the
Thornburgh Destination Resort on remand from the Oregon Land Use Board of Appeals (LUBA
2018-140) and the Oregon Court of Appeals (A171603).
Decision 247-21-000731-A clarifies and implements applications 247-18-000386-TP (Tentative Plan
(TP) for Phase A-1 of the Thornburgh Destination Resort subdivision), 18-000454-SP (Site Plan
Review (SP) for associated utility facilities including a well, well house, pump house, reservoir, and
interim subsurface sewage disposal system), and 18-000542-MA (Modification of Application (MA)
for the Site Plan Review).
I. BACKGROUND
Deschutes County Planning Division referred the case to the Deschutes County Hearings Officer for
a decision based on the remand directives provided by LUBA and the Oregon Court of Appeals. The
Hearings Officer remand decision concisely summarizes the case in the following excerpt:
This Hearings Officer’s remand decision is the latest in a long line of applications,
hearings, decisions, and appeals involving a proposed destination resort
(“Thornburgh Resort”) in Deschutes County (“County”). The County destination resort
approval process involves multiple steps (I.e., DCC 18.113). The first step is an
application for Conceptual Master Plan (“CMP”) approval. The second step is an
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application for Final Master Plan (“FMP”) approval. Additional steps, including
applications for tentative plan(s) (“TP”) and site plan(s) (“SP”), are also part of the
County destination resort approval process. Applicant, on or about 2006, received
approval of its CMP; various appeals followed. Applicant, on or about 2008, received
County approval for its FMP. Eventually, following the resolution of multiple appeals,
the FMP was upheld/approved. An important part of the FMP is the Fish and Wildlife
Mitigation Plan (Thornburgh Resort Fish and Wildlife Mitigation Plan Addendum
Relating to Potential Impacts of Ground Water Withdrawals on Fish Habitat – the
“FWMP” and hereafter referred to as the “Mitigation Plan”).
On or about May of 2018 Applicant sought TP and SP approval for Thornburgh Resort
Phase A-1 (“Phase A-1”). A County land use hearings officer (“TP Hearings Officer”)
approved with conditions Applicant’s TP and SP applications for Phase A-1. Gould
appealed the TP Hearings Officer’s Phase A-1 decision.
On June 19, 2019 the Oregon Land Use Board of Appeals (“LUBA”) remanded the TP
Hearings Officer’s Phase A-1 decision. Annunziata Gould v. Deschutes County, LUBA
No. 2018-140 (2019) (hereafter referred to as the “LUBA Remand Decision”). Various
appeals followed the LUBA Remand Decision which, while important to the parties,
are not directly relevant to this Hearing’s Officer remand decision. A hearing was
scheduled for August 20, 2021 [August 24, 2021] (“Remand Hearing”) to consider the
LUBA Remand Decision. Testimony was received at the Remand Hearing and
additional evidence and argument was submitted during an open-record period.
The Hearings Officer also finds the bold highlighted section established the scope
(limits) of the current remand process. The Hearings Officer finds that LUBA directed
the Hearings Officer, in this case, to do the following:
LUBA Remand Directive #1: DETERMINE IF, WITHOUT CONDITION 17,
APPLICANT’S PHASE A-1 PLAN SATISFIES THE NO NET LOSS/DEGRADATION
STANDARD; and
LUBA Remand Directive #2: WHETHER A CHANGE IN THE “SOURCE” OF
MITIGATION WATER [IF PROPOSED] FOR PHASE A-1 CONSTITUTES A Substantial
Change to the FMP Approval.
/ / / /
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Figure 1: Subject Property
II. HEARINGS OFFICER DECISION
As noted above, LUBA directives limit the Hearings Officer Remand Decision to the following:
• Determine if, without condition 17, applicant’s Phase A-1 Plan satisfies the no net
loss/degradation standard; and
• Whether a change in the “source” of mitigation water [if proposed] for Phase A-1
constitutes a substantial change to the FMP approval.
A public hearing was held August 24, 2021; additional argument and evidence was provided during
the open record period. Public comment received during this time largely focused on the availability
of water and the impacts of the proposed use on area residents and farmers that rely on existing
wells and water rights. The Hearings Officer addressed the comments received but notes the
remand decision addresses water only as directed by the LUBA and Court of Appeals remand, thus
limiting the decision to water requirements of the previously approved Wildlife Mitigation Plan.
The Hearings Officer remand decision concludes the following:
The Hearings Officer, based upon the evidence in the record, determined that
Applicant’s proposed use of BFR water rights to satisfy Mitigation Plan mitigation
water obligations for Phase A-1 did not constitute a change of “source” of the
mitigation water. The Hearings Officer also found that since there was no change of
“source” of mitigation water for Phase A-1 then Applicant’s Phase A-1 proposal did not
constitute a change to the FMP or Mitigation Plan. The Hearings Officer found that
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the no net loss/degradation standard was satisfied for Phase A-1 by Applicant’s use
of BFR water rights.
The Hearings Officer finds that Condition 17 of the Hearings Officer’s Decision in
Deschutes County File Numbers Deschutes County File Numbers 247-18-000386-TP /
454-SP / 592-MA is not valid and must be removed/deleted. The Hearings Officer
finds that, without Condition 17, the Hearings Officer’s Decision in Deschutes County
File Numbers Deschutes County File Numbers 247-18-000386-TP / 454-SP / 592-MA
should be affirmed.
DECISION
1. The Hearings Officer’s Decision for Deschutes County File Numbers 247-18-
000386-TP / 454-SP / 592-MA is affirmed excepting that Condition 17 is
deleted/removed; and
2. The Mitigation Plan mitigation water source, as proposed by Applicant in
Deschutes County File Numbers 247-18-000386-TP / 454-SP / 592-MA, is in
conformance with the Thornburgh Resort Final Wildlife Mitigation Plan
(FWMP); and
3. The no net loss/degradation standard is met/satisfied, if Condition 17 is
removed/deleted, by Applicant’s Phase A-1 application and the Hearings
Officer’s Decision for Deschutes County File Numbers Deschutes County File
Numbers 247-18-000386-TP / 454-SP / 592-MA.
III. APPEAL
The appellant, Annunziata Gould provide the following statement of reasons for the appeal:
• The hearings officer erred in denying appellant's September 13, 2021 request to reopen the
record for the limited purpose of rebuttal, and September 20, 2021 request to respond to a
submittal by the applicant's counsel. Under ORS 197 .763(6) and (7), appellant was entitled
to place the requested rebuttal and response in the record.
The appellant requests the Board hear this matter to review and reverse the Hearings Officer
remand decision. The appellant requests a de novo hearing before the Board.
IV. BOARD OPTIONS
There are two versions of Order No. 2021-059 attached to this memo, one to hear the appeal and
one to decline to hear the appeal. In determining whether to hear an appeal, the Board may
consider only:
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1. The record developed before the Hearings Officer;
2. The notice of appeal; and
3. Recommendation of staff1
In addition, if the Board decides to hear the appeal, it may consider providing time limits for public
testimony.
Reasons not to hear:
• The Hearings Officer’s decision is reasoned, well written, and could be supported, as the
record exists today on appeal to LUBA.
• Statutory remand timelines require a final local decision by November 27, leaving very little
time for the Board to sufficiently hear, deliberate, and decide upon the matter.
• The applicant agrees with the Hearings Officer’s decision and thus requests that the Board
not hear the appeal.
Reasons to hear:
• The Board may want to take testimony and make interpretations relating to the Hearings
Officer’s decision. The Board may also want to reinforce or refute some or all of the decision
findings/interpretations prior to Land Use Board of Appeals (LUBA) review.
• The appellant recommends the Board hear this matter.
If the Board chooses to hear this matter, the appellant requests the hearing be heard de novo. The
applicant has not stated whether they would like the hearing before the Board be heard de novo,
limited de novo, or on the record. Under DCC 22.32.027(B)(3) the Board may choose to hear a matter
de novo at their sole discretion.
If the Board decides that the Hearings Officer’s remand decision shall be the final decision of the
county, then the Board shall not hear the appeal and the party appealing may continue the appeal
as provided by law. The decision on the land use applications becomes final upon the mailing of the
Board’s decision to decline review.
V. STAFF RECOMMENDATION
Staff recommends the Board not hear this appeal because staff believes that the appellants were
able to present all relevant evidence at the hearing before the Hearings Officer. Staff agrees with
the Hearings Officer’s analysis and decision. Staff also notes that there is not adequate time in the
120-day remand review clock.
1 Deschutes County Code (DCC) 22.32.035(B) and (D)
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VI. 150-DAY LAND USE CLOCK
The 120th day on which the County must take final action on these applications is November 27,
2021.
VII. RECORD
The record for appeal File 247-21-000937-A (247-21-000731-A) is as presented at the following
Deschutes County Community Development Department website:
https://www.deschutes.org/cd/page/247-21-000937-deschutes-county-board-commissioners-
decision-whether-hear-appeal
Attachments:
Document Item No.
2021-10-20 DRAFT Board Order 2021-059 Accept to Hear 1
2021-10-20 DRAFT Board Order 2021-059 Decline to Hear 2
ORDER NO. 2021-059
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings
Officer’s Decision in File Nos. 247-21-937-A.
*
*
ORDER NO. 2021-059
WHEREAS on June 21, 2019, the Oregon Land Use Board of Appeals (LUBA) issued 2018-140
remanding the review of Deschutes County’s decision to approve 247-18-000386-TP, 000454-SP,
and 000542-MA; and
WHEREAS on June 11, 2021, the Oregon Court of Appeals issued Appellate Judgement and
Supplemental Judgement A171603, which Affirmed Without Opinion LUBA 2018-140 remand; and
Whereas on July 30, 2021, Central Land and Cattle Co., LLC initiated 247-21-000731-A, by
request to review LUBA’s remand of 247-18-000386-TP, 18-000454-SP, 18-000542-MA on Remand
from LUBA; and
WHEREAS, on August 24, 2021, a public hearing was held at 6:00pm in the Barnes and
Sawyer Meeting Room and by Zoom for the Deschutes County Hearings Officer review of 247-21-
000731-A; and
WHEREAS, on October 4, 2021, the Deschutes County Hearings Officer approved
Application No. 247-21-000731-A, 18-386-TP, 18-454-SP, 18-542-MA, LUBA No. 2018-140, Court of
Appeals A171603; and
WHEREAS, on October 15, 2021, Annuziata Gould, the Appellant, appealed (File No. 247-21-
000937-A) the Deschutes County Hearings Officer’s Decision on File 247-21-000731-A; and
WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code (“DCC”) allow
the Deschutes County Board of County Commissioners (“Board”) discretion on whether to hear
appeals of Hearings Officers’ decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application
on appeal; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
REVIEWED
______________
LEGAL COUNSEL
ORDER NO. 2021-059
Section 1. That it will hear on appeal application 247-21-000937-A pursuant to Title 22
of the DCC and other applicable provisions of the County land use ordinances.
Section 2. The appeal shall be heard de novo.
Section 3. Staff shall set a hearing date and cause notice to be given to all persons or
parties entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030.
Section 4. Pursuant to Section 22.32.024, the Board waives the requirement that the
appellants provide a complete transcript for the appeal hearing.
Section 5. Pursuant to DCC 22.32.035(D), the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
developed before the lower hearing body for file nos. 247-18-000386-TP, 18-000454-SP, 18-
000542-MA (appeal file no. 247-21-000731-A) as presented at the following website:
https://www.deschutes.org/cd/page/247-21-000937-deschutes-county-board-commissioners-
decision-whether-hear-appeal
Going forward, all documents further placed before, and not rejected by, the Board
shall be added to the aforementioned website, and that website shall be the Board’s
official repository for the record in this matter.
DATED this _____ day of ________, 2021.
BOARD OF COUNTY COMMISSIONERS
ANTHONY DeBONE, Chair
ATTEST: PHIL CHANG, Vice Chair
_______________________________
Recording Secretary PATTI ADAIR, Commissioner
ORDER NO. 2021-059
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Review of Hearings
Officer’s Decision in File Nos. 247-21-937-A.
*
*
ORDER NO. 2021-059
WHEREAS on June 21, 2019, the Oregon Land Use Board of Appeals (LUBA) issued 2018-140
remanding the review of Deschutes County’s decision to approve 247-18-000386-TP, 000454-SP,
and 000542-MA; and
WHEREAS on June 11, 2021, the Oregon Court of Appeals issued Appellate Judgement and
Supplemental Judgement A171603, which Affirmed Without Opinion LUBA 2018-140 remand; and
Whereas on July 30, 2021, Central Land and Cattle Co., LLC initiated 247-21-000731-A, by
request to review LUBA’s remand of 247-18-000386-TP, 18-000454-SP, 18-000542-MA on Remand
from LUBA; and
WHEREAS, on August 24, 2021, a public hearing was held at 6:00pm in the Barnes and
Sawyer Meeting Room and by Zoom for the Deschutes County Hearings Officer review of 247-21-
000731-A; and
WHEREAS, on October 4, 2021, the Deschutes County Hearings Officer approved
Application No. 247-21-000731-A, 18-386-TP, 18-454-SP, 18-542-MA, LUBA No. 2018-140, Court of
Appeals A171603; and
WHEREAS, on October 15, 2021, Annuziata Gould, the Appellant, appealed (File No. 247-21-
000937-A) the Deschutes County Hearings Officer’s Decision on File 247-21-000731-A; and
WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code (“DCC”) allow
the Deschutes County Board of County Commissioners (“Board”) discretion on whether to hear
appeals of Hearings Officers’ decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application
on appeal; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
REVIEWED
______________
LEGAL COUNSEL
ORDER NO. 2021-059
Section 1. That it will not hear on appeal application 247-21-000937-A pursuant to Title
22 of the DCC and/or other applicable provisions of the County land use ordinances.
Section 2. Pursuant to DCC 22.32.015, the County shall refund any portion of the appeal
fee not yet spent processing the subject application. If the matter is further appealed to the Land
Use Board of Appeals and the County is required to prepare a transcript of the hearing before the
Hearings Officer, the refund shall be further reduced by an amount equal to the cost incurred by
the County to prepare such a transcript.
Section 5. Pursuant to DCC 22.32.035(D), the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
developed before the lower hearing body for file nos. 247-18-000386-TP, 18-000454-SP, 18-
000542-MA (appeal file no. 247-21-000731-A) as presented at the following website:
https://www.deschutes.org/cd/page/247-21-000937-deschutes-county-board-commissioners-
decision-whether-hear-appeal
DATED this _____ day of ________, 2021.
BOARD OF COUNTY COMMISSIONERS
ANTHONY DeBONE, Chair
ATTEST: PHIL CHANG, Vice Chair
_______________________________
Recording Secretary PATTI ADAIR, Commissioner