HomeMy WebLinkAbout2021-08-24 K. Katzaroff - Email re Public Comment1
Chenelle Hale
From:Katzaroff, Kenneth <KKatzaroff@SCHWABE.com>
Sent:Tuesday, August 24, 2021 3:48 PM
To:William Groves
Cc:liz@lizfancher.com; Schunk, Andrea K.; 'Kameron DeLashmutt'
Subject:Letter to Hearings Officer for Deschutes County File Nos. 247-21-000731-A, 18-386-TP,
18-454 -SP, 18-542- MA [IWOV-pdx.FID4649055]
Attachments:L to HO 8.24.2021.pdf
[EXTERNAL EMAIL]
Hi Will!
Please include the attached latter in the record for Deschutes County File Nos. 247-21-000731-A, 18-386-TP, 18-454 -SP,
18-542-MA. It addresses the issue of participation in the limited remand hearing.
Thanks,
Ken
Schwabe Williamson & Wyatt
Kenneth Katzaroff
Attorney
Direct: 206-405-1985
kkatzaroff@schwabe.com
Admitted in Washington and Oregon.
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Kenneth Katzaroff
Admitted in Washington and Oregon
T: 206-405-1985
C: 206-755-2011
KKatzaroff@SCHWABE.com
August 24, 2021
VIA E-MAIL
Hearing Officer Frank
c/o Will Groves, Senior Planner
Deschutes County Community Development
117 NW Lafayette Ave.
Bend, OR 97703
RE:Deschutes County File Nos. 247-21-000731-A, 18-386-TP, 18-454 -SP, 18-542-
MA; Remand of LUBA No. 2018-140; Court of Appeals A171603.
Our File No.: 135849-262760
Dear Hearing Officer Frank:
Our office serves as co-counsel for the Thornburgh Destination Resort and its related parties
(collectively, “Thornburgh”), including on the above-referenced proceedings. This letter is to
clarify Thornburgh’s position regarding public participation at the hearing scheduled for August
24, 2021, at 6pm.
LUBA has framed the remand before the hearings office as “narrow.” See __ Or LUBA __, __
(LUBA No. 2020-095, June 11, 2021)(slip op at 4). Essentially, the issue before this hearings
officer is whether the approved Tentative Plan will still meet the county’s “no net loss” standard
with the removal of Condition 17.
Thornburgh and the appellants to LUBA No. 2018-140 have both asked that new evidence on
this narrow issue be permitted. This is allowed under DCC 22.34.040.A. However, the issue on
remand is limited to the issue remanded by LUBA. Id.
An issue has arisen as to who is entitled to participate in the remand proceeding. Under DCC
22.34.030.A, only those who participated in the earlier proceedings are allowed to participate
“unless state law requires otherwise[.]” Thornburgh is not aware of any state law or precedent
that requires that persons who are not parties to the review of a local decision appealed to LUBA
must be allowed to participate in the review of the decision on remand absent a substantive
change in the nature of the land use application. However, to avoid arguments regarding
procedural error, Thornburgh does not object to consideration of additional testimony from
previously non-appearing parties on the limited issue subject to this remand.
Hearing Officer Frank
August 24, 2021
Page 2
schwabe.com
Thornburgh disagrees with Central Oregon LandWatch’s (“COLW”) analysis of Langeek v. City
of Talent, 52 Or LUBA 509 (2006)(aff’d without opinion, 214 Or APP 571, 166 P3d 606 (2007).
The case does not stand for the proposition that whenever a local government accepts new
evidence during a review on remand it may not limit public participation. In that case, public
participation was required because the applicant modified the land use proposal resulting in an
amended application. Id. at 510, 512. Here, no such amendment is necessary and only a narrow
remand exists.
We note that the vast majority of public comments are arguments presented by COLW in a “blast”
e-mail that are merely parroted by participants. Most of these arguments stray far beyond the
narrow question presented on remand by LUBA and may not be relied on by the hearings officer
as a basis for denial of the tentative plan. Broad issues of public policy and the wisdom of using
groundwater for resort uses are simply not relevant to the narrow issue now before the County.
Very truly yours,
SCHWABE, WILLIAMSON & WYATT, P.C.
/s/ Kenneth Katzaroff
Kenneth Katzaroff
PDX\135849\262760\JKKA\31580758.1