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Home My WebLink About2021-09-07 J. Kleinman - Rebuttal Memorandum1 Chenelle Hale From:Jeffrey L. Kleinman <kleinmanjl@aol.com> Sent:Tuesday, September 7, 2021 4:38 PM To:William Groves Subject:File Nos. 247-21-000731-A, 18-386-TP, 18-454-SP, 18-542-MA (Thornburgh) Attachments:Hearings Officer Memorandum (Rebuttal) 9-7-21.pdf [EXTERNAL EMAIL] Hi Will, Attached please find rebuttal memorandum for the record in the above matter. Thank you. Jeffrey L. Kleinman Attorney at Law The Ambassador 1207 SW Sixth Avenue Portland, OR 97204 Tel: (503) 248-0808 Fax: (503) 228-4529 Email: KleinmanJL@aol.com JEFFREY L. KLEINMAN ATTORNEY AT LAW THE AMBASSADOR 1207 S.W. SIXTH AVENUE PORTLAND, OREGON 97204_______ TELEPHONE (503) 248-0808 FAX (503) 228-4529 EMAIL KleinmanJL@aol.com September 7, 2021 REBUTTAL MEMORANDUM OF ANNUNZIATA GOULD TO:Greg Frank, Deschutes County Land Use Hearings Officer FROM:Jeffrey L. Kleinman RE:File Nos. 247-21-000731-A, 18-386-TP, 18-454-SP, 18-542-MA; LUBA No. 2018-140; Court of Appeals A171603 Thornburgh Destination Resort Subdivision ______________________________________________________________________ A. Introduction This rebuttal memorandum is submitted on behalf of Nunzie Gould. Please note that additional materials from Ms. Gould’s water counsel, Karl Anuta, are being filed today as further rebuttal. B. Rebuttal Issues David Newton’s August 31 submittal for the applicant makes points which would have merit if two things had actually occurred: (1) The subject water right had been transferred back from groundwater on the BFR property to surface water in Deep Canyon Creek; and Greg Frank Deschutes County Hearings Officer September 7, 2021 page 2 (2) That water right had been permanently placed instream in Deep Canyon Creek. However, neither of those events has come to pass. As Mr. Anuta has stated, it would take time to carry out the former if it were to occur at all. As he has also explained, the latter may become impossible (i.e., infeasible) even if the effort is someday made. The applicant’s presentation brings to mind a famous law professor’s response to a student’s answer to a question the prof had posed. We paraphrase that response very loosely here: That is not the answer to the question LUBA asked. It is, however, the answer to a question LUBA might have asked, but didn’t, namely: “If Big Falls Ranch were to completely unwind the transfer of the Deep Canyon Creek rights from surface to ground water, and if Thornburgh thereafter applied for and subsequently obtained an instream water right permanently protecting that Deep Canyon Creek water instream, what would the mitigation situation then look like?” That of course is not the question before us here. And this in turn is why Hearings Officer Olsen found it necessary to impose TP Condition 17. Page 2 - REBUTTAL MEMORANDUM OF ANNUNZIATA GOULD Greg Frank Deschutes County Hearings Officer September 7, 2021 page 3 In a memorandum re-posted on September 1, Ms. Fancher directs your attention to the board of commissioners’ post-remand decision made on November 25, 2019, at a time when the board lacked jurisdiction to make it. Counsel states in material part: The parties have agreed that, based on the Supreme Court's finding that Ms. Gould timely appealed LUBA No. 2018-140, the Board lacked jurisdiction to make that decision and, therefore, the decision is of no legal effect. The decision does, however, provide insight into how two of the current members of the BOCC view the legal issues presented by this remand. Supplement to Central Land and Cattle Company LLC's Burden of Proof on Remand at 1. A copy of the agreement to which counsel refers (actually a stipulation in LUBA No. 2019-136), bearing the signatures of all attorneys, is attached hereto as Exhibit A. It states in material part: [T]he appealed land use decision shall be and the same is hereby deemed null and void and of no force and effect whatsoever. The parties further recognize that the pending remand proceeding before the County Hearings Officer in LUBA No. 2018-140 is expected to be conducted de novo on the issues(s) as to which it was remanded by LUBA. Exhibit A at 2. The county’s putative November 2019 decision was made based upon the Page 3 - REBUTTAL MEMORANDUM OF ANNUNZIATA GOULD Greg Frank Deschutes County Hearings Officer September 7, 2021 page 4 record in that proceeding. We are now engaged in an independent, de novo proceeding with its own evidentiary record. To the extent that the applicant has nonetheless placed the 2019 record before you, please note that ODFW timely participated in that round. This is demonstrated by the September 6, 2019 letter appearing at page 2 of the August 23, 2021 email from Corey Heath, ODFW’s Deschutes Watershed Manager (ACCELA page 13, item 4). (See Exhibit B, attached.)1 As Mr. Heath states in his letter of August 23, 2021 (Exhibit B at 3), “TP Condition 17 is necessary to ensure the no net loss standard is maintained.” C. Conclusion We must not lose sight of the fact that the applicant has the burden of proof in this case. Hence, when, for example, one of the applicant’s attorneys suggests that the actual agreement between the applicant and BFR is none of anyone’s 1In addition, ODFW was mailed Notice of Decision in the original 2018 proceeding. Page 4 - REBUTTAL MEMORANDUM OF ANNUNZIATA GOULD Greg Frank Deschutes County Hearings Officer September 7, 2021 page 5 business2, that may indeed be true as far as it goes. The question then is whether the applicant’s burden is met by the flimsy evidence contained in a memorandum of that agreement, describing a short time to expiration and indicating that revocation may occur even earlier. Even if that memorandum of an undisclosed agreement could stand alone, with no proof from opponents that the relevant water right has been transferred to groundwater, and that it may not be possible to re- transfer that right so that it is placed permanently instream in Deep Canyon Creek as required, the proffered memorandum would not persuade a reasonable decisionmaker. Hearings Officer Olsen extended Thornburgh a second chance–a lifeline–in this case. Instead of denying the multiple applications before him for failure to comply with FMP Conditions 10 and 38 at this phase, he imposed TP Condition 17. Condition 17 allows Thornburgh to make the required showing at the time it submits its Site Design Review application for its first Overnight Lodging Units. 2"The land use process does not entitle either Mr. Kleinman's client or any other member of the public to insert themselves into the Applicant's private contract * * *." Neuman, 8/24/21 at 1. Page 5 - REBUTTAL MEMORANDUM OF ANNUNZIATA GOULD Greg Frank Deschutes County Hearings Officer September 7, 2021 page 6 (As we have pointed out, that application has in fact been submitted.) That was generous on the Hearings Officer’s part. For all the reasons presented by opponents, the applicant is now further than it was before from meeting its burden of proving compliance with FMP Conditions 10 and 38. Accordingly, Condition 17 is more essential than before and must be retained. Dated: September 7, 2021. Respectfully submitted, Jeffrey L. Kleinman _______________________________ Jeffrey L. Kleinman, OSB No. 743726 Attorney for Annunziata Gould Page 6 - REBUTTAL MEMORANDUM OF ANNUNZIATA GOULD