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Home My WebLink About2021-11-12 Katzaroff Applicant Open Record Submittal - Part 2 - for File Nos 247-21-000553-MC -920-A1 Tracy Griffin From:Katzaroff, Kenneth <KKatzaroff@SCHWABE.com> Sent:Friday, November 12, 2021 3:01 PM To:Angie Brewer Cc:liz@lizfancher.com; 'Kameron DeLashmutt'; Schunk, Andrea K. Subject:Applicant Open Record Submittal - Part 2 - for File Nos. 247-21-000553-MC; -920-A [IWOV-pdx.FID4723617] Attachments:Applicant Open Record Submittal File Nos. 247-21-000553-MC; -920-A (Part 2).pdf [EXTERNAL EMAIL] Angie – Please find the attached Applicant Open Record Submittal (Part 2 of 2) for File Nos. 247-21-000553-MC; -920-A. A hard copy is also being filed. Thanks, Ken Schwabe Williamson & Wyatt Kenneth Katzaroff Attorney Direct: 206-405-1985 kkatzaroff@schwabe.com Admitted in Washington and Oregon. 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FIGUREDESIGNED BY:DRAWN BY:DATE:PROJECT NO. 1130-101Oct 2015 Earth, Water and Rock Specialists Ph: 503 742-1800 Fax: 503 742-1801 Thornburgh Resort Deschutes County, Oregon Groundwater Estimated Inflows & Losses S. Yankey S. Schenck Exhibit 119 Page 10 of 15 Exhibit 119 Page 11 of 15 PHOTO 1 HEAD AREA OF DEEP CANYON SPRING OCT 2021 Exhibit 119 Page 12 of 15 POND CREATED BY BEAVER DAM PHOTO 2 HEAD AREA OF SPRING OCT 2021 Exhibit 119 Page 13 of 15 1 - PHOTO 3 BEAVER DAM & POND BELOW HEAD OF SPRING OCT 2021 Exhibit 119 Page 14 of 15 1 - BEAVER DAMMED WEIR & POND OCT 2021 PHOTO 4 Exhibit 119 Page 15 of 15 August 2021 IN THE COURT OF APPEALS OF THE STATE OF OREGON ANNUNZIATA GOULD and PAUL J. LIPSCOMB, Petitioners, vs. DESCHUTES COUNTY and KAMERON K. DELASHMUTT, Respondents. EXPEDITED PROCEEDING UNDER ORS 197.850 AND ORS 197.855 Land Use Board of Appeals No. 2020-095 CA A176353 ANSWERING BRIEF FOR RESPONDENT KAMERON K. DELASHMUTT On Appeal from the Final Opinion and Order of the Land Use Board of Appeals dated June 11, 2021 Jeffrey L. Kleinman, OSB #743726 Email: KleinmanJL@aol.com 1207 SW Sixth Avenue Portland, OR 97204 Telephone: 503-248-0808 Attorney for Petitioner Annunziata Gould Paul J. Lipscomb, OSB #752301 Email: judgelipscomb@gmail.com PO Box 579 Sisters, OR 97759 Telephone: 503-551-7272 Attorney for Petitioner Paul J. Lipscomb David Adam Smith, OSB #170317 Email: adam.smith@deschutes.org Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Telephone: 541-388-6593 Attorney for Respondent Kenneth Katzaroff, OSB #143550 Email: KKatzaroff@schwabe.com Schwabe, Williamson & Wyatt, P.C. 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711 Attorney for Respondent Kameron K. Delashmutt August 12, 2021 03:33 PM Exhibit 120 Page 1 of 35 i TABLE OF CONTENTS STATEMENT OF CASE ................................................................................... 1 I. Nature of the Proceeding and Relief Sought .............................................. 1 II. Nature of the Order Being Reviewed ......................................................... 1 III. Statutory Basis for Jurisdiction .................................................................. 1 IV. Effective Date of Appeal ............................................................................ 1 V. Questions Present on Appeal ...................................................................... 2 VI. Summary of the Arguments ....................................................................... 2 VII. Statement of Facts ...................................................................................... 3 RESPONSE TO PETITIONER GOULD’S ASSIGNMENT OF ERROR ............................................................................................... 4 LUBA correctly affirmed the County’s interpretation of and findings of compliance with Condition 10 of the resort’s FMP. This determination and interpretation of said condition is the same interpretation affirmed by this Court in Gould v. Deschutes County, 310 Or App 868 (2021). ................................................................ 4 I. Preservation ................................................................................................ 4 II. Standard of Review .................................................................................... 4 III. Argument .................................................................................................... 5 A. Condition 10 ..................................................................................... 5 B. Gould Misunderstands the Status of G-17036 ................................. 7 C. Gould Confuses Mitigation Requirements ..................................... 11 1. DCC 18.113.070(K) and Water Mitigation – Condition 10 ........................................................................ 12 2. DCC 18.113.070(D) and FWMP – Condition 38 ................ 15 Exhibit 120 Page 2 of 35 ii RESPONSE TO PETITIONER LIPSCOMB’S ASSIGNMENT OF ERROR ............................................................................................. 16 LUBA correctly interpreted and applied ORS 197.455. The destination resort siting criteria of ORS 197.455(1) are not applicable to the development decision upheld by LUBA. Lipscomb’s argument ignores the plain text of the statute. This assignment of error should be denied. ...................................................... 16 I. Preservation .............................................................................................. 16 II. Petitioner makes no effort to cite to the record or otherwise establish preservation of this assignment of error as required ORAP 5.45. However, Thornburgh agrees that Lipscomb previously argued that ORS 197.455 should apply to the County’s decision. Standard of Review ................................................................... 16 III. Argument .................................................................................................. 17 A. ORS 197.455(1) Criteria are Mapping Criteria Only .................... 17 B. A Golf Course Site Plan Does Not “Site” a Resort ....................... 21 C. Foland v. Jackson County is Inapposite to the Facts Presented ........................................................................................ 23 CONCLUSION ................................................................................................. 26 Exhibit 120 Page 3 of 35 iii TABLE OF AUTHORITIES Page(s) Cases Central Land and Cattle Company, LLC v. Deschutes County, 74 Or LUBA 326 (2016) ..................................................................... 3 Central Oregon LandWatch v. Deschutes County, 245 Or App 166, 262 P3d 1153 (2011) ............................................ 19 Foland v. Jackson County, 101 Or App 632, 792 P2d 1228 (1990), aff’d 311 Or 167, 807 P2d 801 (1991) .............................................................. 23, 24, 25 Foland v. Jackson County, 311 Or 167, 807 P2d 801 (1991) ...................................................... 25 Gould v. Deschutes County, 310 Or App 868, 484 P3d 1073 (2021) .................................... 4, 5, 13 Gould v. Deschutes County, 79 Or LUBA 561 (2019) ............................................. 4, 12, 13, 15, 16 Kine v. Deschutes County, 313 Or App 370 (2021) .................................................................... 17 Mountain West Investment Corp. v. City of Silverton, 175 Or App 556, 30 P3d 420 (2001) ................................................ 17 Portland General Electric v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993) as modified by State v. Gaines, 346 Or 160, 206 P3d 1042 (2009) .................................. 17 Statutes DCC 18.113 .................................................................................... 21, 23 DCC 18.113.010 ................................................................................... 21 DCC 18.113.020(A)............................................................................... 22 Exhibit 120 Page 4 of 35 iv DCC 18.113.040(B)............................................................................... 22 DCC 18.113.040(C)......................................................................... 22, 23 DCC 18.113.050 – 18.113.070 .............................................................. 22 DCC 18.113.070(D) .............................................................................. 15 DCC 18.113.070(K) ........................................................................ 12, 14 DCC Title 22 ......................................................................................... 22 Oregon Revised Statutes (“ORS”) ......................................................... 2 ORS 197.445 ................................................................................... 19, 20 ORS 197.455 ................................................................................. passim ORS 197.455(1) ............................................................................ passim ORS 197.455(1)(a) .............................................................. 18, 19, 20, 23 ORS 197.455(2) ............................................................................ passim ORS 197.455(2)(a) ................................................................................ 19 ORS 197.610 to 197.625 ....................................................................... 20 ORS 197.850(9)(a) ................................................................................ 17 ORS 537.211(1) .................................................................................... 10 ORS 537.230 ......................................................................................... 10 ORS 537.230(4) ...................................................................................... 9 ORS 537.260(1) ................................................................................ 9, 10 ORS 537.410 ......................................................................................... 10 ORS 537.410-450 .................................................................................... 9 ORS 537.450 ......................................................................................... 10 Exhibit 120 Page 5 of 35 v Other Authorities 25 Op. Att’y Gen. 91 (1951) ................................................................. 10 OAR 690 Division 505 .......................................................................... 13 ORAP 5.45 ............................................................................................ 16 Oregon Attorney General Opinion No. 1637 ...................................... 10 Oregon Rules of Appellate Procedure ................................................... 2 Exhibit 120 Page 6 of 35 1 STATEMENT OF CASE I. Nature of the Proceeding and Relief Sought Petitioner Annunziata Gould (“Gould”) and Petitioner Paul J. Lipscomb (“Lipscomb”)1 appeal the Land Use Board of Appeals (“LUBA”) order in LUBA No. 2020-095, dated June 11, 2021 (the “LUBA Order”).2 That order affirmed Respondent Deschutes County’s (the “County”) approval of site plan review for a golf course, irrigation lakes, and a road system as part of the Thornburgh Destination Resort owned by Intervenor-Respondent Kameron DeLashmutt (“Thornburgh”).3 LUBA Rec 3. II. Nature of the Order Being Reviewed Thornburgh agrees with petitioners’ statement of the nature of the order. III. Statutory Basis for Jurisdiction Thornburgh agrees with petitioners’ statement of jurisdiction. IV. Effective Date of Appeal Thornburgh agrees that petitioners filed timely petitions for review. 1 Gould was the Petitioner at LUBA and Lipscomb was an Intervenor- Petitioner. 2 We cite to LUBA’s record transmittal as “LUBA Rec” and the County’s underlying record as “Rec”. Similarly, Petitioner Gould’s opening brief is cited as “Pet Br” and Petitioner Lipscomb’s opening brief is cited as “IP Br” as he was Intervenor-Petitioner below. 3 Respondent Kameron DeLashmutt controls all entities that are developing the Thornburgh destination resort. For ease of reference, we refer to respondent as Thornburgh throughout this brief. Exhibit 120 Page 7 of 35 2 Petitioner Lipscomb, however, did not comply with brief filing requirements. Specifically, on July 19, 2021, the Appellate Court Records Section Clerk informed Lipscomb that his brief was noncompliant with the Oregon Revised Statutes (“ORS”) and/or the Oregon Rules of Appellate Procedure (“ORAP”), stating that his brief would not be considered if he did not file a corrected brief on or before July 26, 2021. App 1. Lipscomb failed to make a timely corrective filing. His brief, therefore, should not be considered.4 V. Questions Present on Appeal 1. Did LUBA err in its interpretation of Condition 10 of the Final Master Plan (“FMP”), which interpretation was the same as the interpretation upheld by this court in A171603? 2. Did LUBA err in interpreting ORS 197.455 consistent with the previous interpretations made by it and this Court regarding the application of that statute? VI. Summary of the Arguments LUBA correctly affirmed the County’s interpretation of Condition 10 and determination that such condition had been met. LUBA properly addressed Petitioner Gould’s arguments regarding mitigation, including articulating the proper standards for mitigation pursuant to Condition 10 and separate and 4 In the abundance of caution, Thornburgh provides a response to Lipscomb’s brief. Exhibit 120 Page 8 of 35 3 distinct mitigation required by other conditions, namely Condition 38. LUBA correctly interpreted and applied ORS 197.455 and precedent interpreting that statute. VII. Statement of Facts LUBA accurately described the facts of this case. LUBA Rec 76-78. For ease of reference, a quick overview and timeline of the final land use decisions related to Thornburgh and their timing is provided here:  2006 - County approves Thornburgh conceptual master plan (“CMP”). LUBA Rec 3. The CMP is final on December 9, 2009. Rec 1839.  2008 – County approved a final master plan (“FMP”). Id. FMP approved phased development. FMP “effectively incorporated and displaced the CMP approval.” Central Land and Cattle Company, LLC v. Deschutes County, 74 Or LUBA 326, 346 (2016). The FMP became final in September of 2018. Rec 1839.  2018 – Thornburgh received County approval of the “Phase A-1” subdivision tentative plan and utility site plan. LUBA Rec 7. We refer to those approvals as the Phase A-1 TP. o LUBA remanded Phase A-1 TP on a narrow question; whether a condition of approval violated the right to public participation on the no net loss standard. LUBA Rec 8. Exhibit 120 Page 9 of 35 4 o Court of Appeals affirmed the Remand. Gould v. Deschutes County, 310 Or App 868, 484 P3d 1073 (2021). The first site plan approved by the County was the approval of the resort’s utility facilities in the Phase A-1 TP decision, which is pending review on remand at the County, following this Court’s affirmance. Rec 2026. The utility site plan approval was not challenged and is not at issue in the remand. The decision challenged here is an approval of the second site plan filed for development of Thornburgh, which includes a golf course, irrigation lakes, and a road system. LUBA Rec 79. RESPONSE TO PETITIONER GOULD’S ASSIGNMENT OF ERROR LUBA correctly affirmed the County’s interpretation of and findings of compliance with Condition 10 of the resort’s FMP. This determination and interpretation of said condition is the same interpretation affirmed by this Court in Gould v. Deschutes County, 310 Or App 868 (2021).5 I. Preservation Gould previously argued that Condition 10 was not satisfied. II. Standard of Review Gould adequately articulates the standard of review. 5 The LUBA decision affirmed is Gould v. Deschutes County, 79 Or LUBA 561 (2019). Exhibit 120 Page 10 of 35 5 III. Argument Gould has established no legal error in LUBA’s decision. Gould assigns error to LUBA’s decision “because it affirmed the county’s interpretation of Condition 10, determining that the county had not misconstrued the applicable law.” Pet Br 15. Gould is incorrect. LUBA reviewed the County’s interpretation of Condition 10 and found it legally correct. LUBA Rec 90-91. LUBA noted that this Court has already upheld this interpretation in Gould v. Deschutes County, 310 Or App 868, 484 P3d 1073 (2021). LUBA Rec 91. Gould also assigns error because “there is no assurance that the permit in question will ultimately be extended.” Pet Br 17. That is not, however, what Condition 10 requires. A. Condition 10 Thornburgh provided a review of the relevant history and local code provisions related to the adoption of FMP Condition 10 to LUBA that is summarized at LUBA Rec 135-137. This information provides the contextual background for the County’s interpretation and determination of compliance with the condition.6 While context is helpful, it is the plain language of the condition itself that controls and further defeats Gould’s challenge. Condition 6 We again note that this is the same determination previously reviewed and upheld by this Court. Exhibit 120 Page 11 of 35 6 10 requires: Applicant shall provide, at the time of tentative plat/site plan approval review for each individual phase of the resort development, updated documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase. Rec 15. As is clear by its plain language, Condition 10 imposes two requirements: (1) updated documentation for the state water right permit; and (2) an accounting of mitigation required under the water right by the Oregon Water Resources Department (“OWRD”), for that phase. Nothing in Condition 10 requires that the Applicant make any showing that an approved and valid water right permit will be extended by OWRD over a project opponent’s objection. The only requirement regarding the state water right permit is to provide “updated documentation[.]” Thornburgh provided that information. Rec 403. Gould has not challenged the sufficiency of this information or provided any reason that the information provided failed to meet the requirements of Condition 10. Instead, Gould argues that Condition 10 cannot be met because of Gould’s pending challenge to OWRD’s Proposed Final Order proposing to approve the water right permit extension.7 7 Gould also appears to argue that required mitigation for fish habitat is not met. Pet Br 3, 18. Gould confuses the mitigation requirements of Condition 10 with those contained in Condition 17, which require adherence to the Fish and Wildlife Habitat Mitigation Plan (“FWMP”). This argument is addressed below. Exhibit 120 Page 12 of 35 7 Thornburgh provided substantial evidence that documented the status of the relevant water right. This included information from OWRD showing that the permit was “Non-Cancelled” (Rec 2236) and that “applicants have an active permit (G-17036)” (Rec 1581). Thornburgh’s water lawyer, Janet Neuman, provided additional information related to the status of the Resort’s water rights, including legal analysis and citation to state law that indicate water right permits remaining in force and effect until cancelled. Rec 398, 434, 873, 2308- 2320. The above information is all that Condition 10 requires – “updated documentation.” Gould has not argued that this information is insufficient. Instead, Gould argues that OWRD’s decision to approve the permit extension is being challenged (by Gould) and so Condition 10 cannot be complied with because “there is no assurance that the permit in question will ultimately be extended.” Pet Br 17. Gould goes on to argue that LUBA’s Order would “grant the applicant a license to violate Condition 10.” Id. That is simply not the case. Condition 10 is an informational requirement only and Thornburgh has complied with it. On that basis alone, LUBA’s decision is not unlawful in substance and should be affirmed. B. Gould Misunderstands the Status of G-17036 Gould attempts to litigate the status of the water rights permit in the land use context and under the guise of a challenge to Condition 10. However, Gould Exhibit 120 Page 13 of 35 8 cites to no law, case, rule, or authority whatsoever to support her claim that G-17036 is not a valid water right. Furthermore, she has failed to explain why the information provided does not satisfy Condition 10. Gould does not dispute that G-17036 is a valid water right permit. In fact, Gould admits that it is not “void or invalid[.]” Pet Br 16. Gould argues that Thornburgh had to seek an extension of the water right permit, and that because Gould has challenged OWRD’s decision to allow the extension, Gould speculates that “result of that proceeding may well be the denial of the requested extension.” Pet Br 16. Gould fails, however, to explain why, if her challenge to the extension is successful, Thornburgh would fail to meet Condition 10. Instead, Gould argues that denial of the extension would leave Thornburgh without water for consumptive use. Id. Gould goes on to state, without any citation, that G-17036 is the “sole source of water approved for resort use under the resort’s Final Master Plan.” Id. That is not a challenge to compliance with Condition 10 and is not a basis to determine that LUBA’s Order is unlawful in substance.8 More importantly, both OWRD and Thornburgh agree, the water right permit is still active, is non-cancelled, and may still be relied upon. Rec 1581, 8 Gould’s assertion is also incorrect. The record includes evidence of hundreds of acres of water rights that can be used by the resort that are not covered by G-17036. LUBA Rec 229. Exhibit 120 Page 14 of 35 9 Rec 398, 434, 873, 2308-2320. No statute, rule, or case provides for the automatic, unilateral cancellation of a water right permit and OWRD has taken no steps to cancel the permit, here. See ORS 537.410-450 (outlining procedures OWRD is required to follow to cancel a permit). Gould has provided no authority that establishes that her challenge of the extension changes the status of the permit. Simply put, G-17036 is still a valid and existing water right and Gould’s challenge to an extension has no bearing on compliance with Condition 10. More importantly, Gould misunderstands or misstates the significance of her challenge to the Proposed Final Order granting the extension request. Under ORS 537.230(4) “for good cause shown, [OWRD] shall order and allow an extension of time” to complete works to perfect a water right. Emphasis added. The “good cause shown” standard is the standard that will be litigated in Gould’s challenge. It is reasonable to believe that “good cause” exists given that the primary reason Thornburgh’s efforts to perfect the water right permit were not completed were due to Gould’s dozens of legal challenges at the County, LUBA, and other judicial proceedings. Rec 238, 1838-1840. Relatedly, OWRD cannot unilaterally cancel a permit. Under ORS 537.260(1), OWRD “may . . . order cancellation of the permit” but only after the permit completion date “has expired and the owner of the permit fails or Exhibit 120 Page 15 of 35 10 refuses” to submit proof of completion as required by ORS 537.230. OWRD “may” order cancellation, but it is not required to do so. ORS 537.260(1). Pursuant to ORS 537.211(1), “…upon receipt of the permit the permittee may proceed with the construction of the necessary works and may take all action required to apply the water to the designated beneficial use and to perfect the proposed appropriation.” That is exactly what Thornburgh is attempting to do by seeking site plan approval and developing its golf course and irrigation lakes. ORS 537.410 to ORS 537.450 provide a detailed process for cancelling a permit. OWRD “may” cancel the permit for, among other things, failure to “complete the construction work within the time required by the law, or as fixed in the permit, or within such further time as may be allowed under ORS 537.230 . . .” ORS 537.410.( Emphasis added.) Thornburgh complied with these statutes and applied for an extension prior to the permit’s expiration, and that extension application is currently subject to OWRD’s Proposed Final Order proposing to grant the extension. Gould’s challenge to that decision by the agency does not automatically result in a cancellation. Thornburgh is pursuing to complete work “within such further time.” Consequently, OWRD has no authority to cancel the permit while an extension proceeding is still pending. This is consistent with the Oregon Attorney General Opinion No. 1637 that stresses the need to follow cancellation procedures in Oregon’s water code. See 25 Op. Att’y Gen. 91 at 6 Exhibit 120 Page 16 of 35 11 (1951) (“the grounds for cancellation are specifically set out. Where a statute authorizes revocation of a permit for causes enumerated, such permit cannot be revoked on any other grounds other than the causes specified.”).9 Nothing in the various and applicable water rights statutes indicates that a permit for which an extension has been timely requested could be automatically cancelled by OWRD or that Gould’s challenge to a request to an extension operates to render a non-cancelled permit void. C. Gould Confuses Mitigation Requirements LUBA’s Order does not, as Gould suggests, leave a “hanging chad” where Thornburgh can “locate an entirely different source of water” and thereby upset wildlife habitat or the Fish Addendum to the Wildlife Mitigation Plan (“FWMP”). Pet Br 18. In making this argument, Gould conflates the mitigation requirements of Condition 10 (OWRD mitigation) and Condition 38 (FWMP mitigation) – an issue we address in more detail below. Furthermore, Gould’s unsubstantiated concern about disrupting the approved scheme for wildlife mitigation is not well founded. Even if Thornburgh pumps groundwater from resort wells as under the authority of a different permit, it will still be pumping the same water for use on the same 9 OWRD has indicated that it intends to grant the extension, and in fact issued a final order approving it. LUBA Rec 87. Upon challenge by Gould, OWRD withdrew the final order to allow the issue to go a contested case hearing, which remains pending. Id. Exhibit 120 Page 17 of 35 12 resort property from the same regional aquifer – presumably with the same impacts to the same aquifer.10 Rec 193, 496, 938, 1138-1160. Thornburgh will remain bound by the FWMP to provide mitigation through Condition 38. LUBA Rec 13. Gould has not challenged Condition 38 or the County’s underlying findings of compliance with Condition 38.11 Gould may not bring such a challenge now. 1. DCC 18.113.070(K) and Water Mitigation – Condition 10 During the review of the CMP, the County was required by DCC 18.113.070(K) to determine that adequate water will be available for all proposed uses for each phase of development. LUBA Rec 18. Condition 10 was imposed to ensure compliance with that code. LUBA Rec 16. Condition 10 requires “mitigation” – but the context for that mitigation is “. . .documentation for the state water right permit and an accounting of the full amount of mitigation, as required under the water right . . .” LUBA Rec 13. Using a labored and out-of-context quote from Gould v. Deschutes County, 79 Or LUBA 561 (2019)(“Gould VIII”), Gould argues that LUBA determined that Condition 10 requires “proving up” of necessary mitigation 10 Pumping from the regional aquifer is required by DCC 18.113.070(K). 11 The County found, in approving the golf course site plan: “Compliance with the FWMP is assured by Condition 38 of the FMP and its program of annual monitoring. As long as a proposed development application does not alter the FWMP, the FWMP is not relevant in the review of a site plan or tentative plan application.” Rec 34. Gould has not challenged this finding. Exhibit 120 Page 18 of 35 13 water.12 Pet Br 20. LUBA’s quote addresses water availability in general. It discusses not only Condition 10, but also Condition 38 and Condition 39 – a fact not mentioned by Gould. Gould VIII at n 9. LUBA’s view of the mitigation required by Condition 10 is: “***water mitigation [required by Condition 10] is based on consumptive use, the condition [10] requires proof of adequate water rights and mitigation commensurate with the estimated consumptive use of water for the development approved at each phase of development, and in advance of actual water consumption.” Gould VIII at 574-575. LUBA makes it clear that “consumptive use” mitigation is the mitigation required under the Deschutes Basin Ground Water Mitigation Rules found at OAR 690 Division 505. Gould VIII at 575, n 11. The mitigation required by OWRD is required to come from the General Zone of Impact (Rec 1159, 2322, 2324), whereas the mitigation required by the FWMP is more specific. Rec 2329 (FWMP). As is evident from the above, LUBA understood that there is a difference in water quantity mitigation under the water right addressed by Condition 10 and fish and wildlife mitigation under the no net lost standard addressed by Condition 38 and the FWMP. This fact is again reflected in LUBA’s Order 12 Gould VIII was affirmed by this Court. Gould v. Deschutes County, 310 Or App 868, 484 P3d 1073 (2021). Exhibit 120 Page 19 of 35 14 affirming approval of the golf course site plan at page 13 of its decision. See also LUBA Rec 44. Further, Gould misunderstands the requirements of DCC 18.113.070(K). Gould argues that if a new application were before the county, the applicant would have to “prove up” the water and that if “the applicant lacked the requisite permit from OWRD, its application would almost certainly be denied.” That is incorrect. This issue was before the County when it approved the Thornburgh CMP. It found that the water availability required by DCC 18.113.070(K) is met if there is substantial evidence in the record that the Resort “is not precluded from obtaining such state agency permits [for water rights] as a matter of law.” Rec. 938 (Decision of Deschutes County Board of County Commissioners approving CMP). DCC 18.113.070(K), the water availability rule, provides that: “Adequate water will be available for all proposed uses at the destination resort, based upon the water study and a proposed water conservation plan. Water use will not reduce the availability of water in the water impact areas identified in the water study considering existing uses and potential development previously approved in the affected area. Water sources shall not include any perched water table. Water shall only be taken from the regional aquifer. Where a perched water table is pierced to access the regional aquifer, the well must be sealed off from the perched water table.” Nothing in that code provision requires that a permit have been granted or be unchallenged, or that the full amount of mitigation be “proved up” or Exhibit 120 Page 20 of 35 15 actually provided at the time of application. What Gould is really arguing is that Thornburgh must provide all mitigation water for all consumptive use now. That is not what the condition requires and Gould has already lost on that issue. Gould VIII at 573-574. All that is required here is that Thornburgh provide updated information regarding the water right and the mitigation needed for the golf course use. Thornbugh has done so and LUBA properly affirmed the County’s determinations on that point. LUBA Rec 46. 2. DCC 18.113.070(D) and FWMP – Condition 38 Condition 38 of the FMP assures that Thornburgh will meet the County’s “no net loss” standard regarding fish and wildlife found at DCC 18.113.070(D) by requiring compliance with the Wildlife Mitigation Plan, including the fish habitat addendum (FWMP). LUBA Rec 65-66. Nevertheless, Gould again argues that fish habitat, including impacts to Whychus Creek, are somehow embedded in the requirements of Condition 10 and that LUBA does not understand that this is her argument. Pet Br 22-23. LUBA understood and correctly rejected Ms. Gould’s argument. LUBA correctly determined that the requirement to meet the “no net loss” standard is part of a different condition – Condition 38 – which Gould has not challenged. LUBA Rec 41.13 13 Condition 38 requires: “The applicant shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008 Supplement, and agreements with the BLM and ODFW for management of offsite mitigation efforts. Consistent with the plan, the applicant shall submit an annual report to the county detailing Exhibit 120 Page 21 of 35 16 Gould states that the applicant (Thornburgh) has “fail[ed] to comply with the plain language of Condition 10.” That is simply incorrect. The County (now on two occasions), LUBA (now on two occasions), and this Court, have all determined or affirmed that the mitigation reporting required by Condition 10 is an informational requirement only. Thornburgh provided the requisite accounting and LUBA’s finding as such should be affirmed. LUBA Rec 69-71. RESPONSE TO PETITIONER LIPSCOMB’S ASSIGNMENT OF ERROR LUBA correctly interpreted and applied ORS 197.455. The destination resort siting criteria of ORS 197.455(1) are not applicable to the development decision upheld by LUBA. Lipscomb’s argument ignores the plain text of the statute. This assignment of error should be denied. I. Preservation Petitioner makes no effort to cite to the record or otherwise establish preservation of this assignment of error as required ORAP 5.45. However, Thornburgh agrees that Lipscomb previously argued that ORS 197.455 should apply to the County’s decision. mitigation activities that have occurred over the previous year. The mitigation measures include removal of existing wells on the subject property, and coordination with ODFW to model stream temperatures in Whychus Creek.” Gould VIII at 575, n. 9. Exhibit 120 Page 22 of 35 17 II. Standard of Review Petitioner provides no standard of review except to say that “interpretation of statutory provisions such as ORS 197.455 is a question of law for this Court on review.” IP Br 5. Based upon this statement, this Court’s review is governed by ORS 197.850(9)(a), which provides that: “(9) The court may affirm, reverse or remand the order. The court shall reverse or remand the order only if it finds: “(a) The order to be unlawful in substance or procedure, but error in procedure is not cause for reversal or remand unless the court finds that substantial rights of the petitioner were prejudiced thereby[.]” LUBA’s order is “unlawful in substance if it represent[s] a mistaken interpretation of applicable law.” Kine v. Deschutes County, 313 Or App 370 (2021) citing Mountain West Investment Corp. v. City of Silverton, 175 Or App 556, 30 P3d 420 (2001)(internal quotations omitted). Statutory interpretation begins with the plain language of the statute. Portland General Electric v. Bureau of Labor and Industries, 317 Or 606, 610– 12, 859 P2d 1143 (1993) as modified by State v. Gaines, 346 Or 160, 171, 206 P3d 1042 (2009). III. Argument A. ORS 197.455(1) Criteria are Mapping Criteria Only ORS 197.455(1) allows for the siting of destination resorts “only on lands Exhibit 120 Page 23 of 35 18 mapped as eligible for destination resort siting by the affected county.” ORS 197.455(1)(a) then includes a list of conditions that disqualify certain lands from being mapped as eligible for destination resort siting. Petitioner argues that these conditions should also apply after land has been mapped as eligible and approved for resort development. IP Br 8-9. This argument is clearly wrong. If land is mapped as eligible, as it is here, a county may approve the siting of a resort on that land unless and until the map is updated or changed to remove eligibility. ORS 197.455(2). ORS 197.455(2) requires a county to adopt an eligibility map as part of its comprehensive plan. Once adopted, a “map adopted pursuant to this section shall be the sole basis for determining whether tracts of land are eligible for destination resort siting[.]” Id. That map conclusively establishes the property that is eligible for siting and development of a resort. A review of the mapping criteria of ORS 197.455(1) is not permissible during each individual phase of resort development thereafter. LUBA correctly interpreted the statute stating: “The limitations on resort siting in ORS 197.455(1) apply at the time that county adopts maps identifying lands eligible fors siting destination resorts. After a county has adopted such maps, the limitations in ORS 197.455(1) do not apply to specific applications for destination resorts. Instead, the adopted maps control whether a specific property is eligible for destination resort siting.” LUBA Rec 10. Exhibit 120 Page 24 of 35 19 LUBA’s Order is consistent with Central Oregon LandWatch v. Deschutes County, 245 Or App 166, 262 P3d 1153 (2011)(“COLW”) which finds: “ORS 197.455 concerns the first step in the establishment of a destination resort, that is, the identification of the land that is eligible for development of destination resorts and the mapping process.” COLW at 170. During a review of a resort proposal, ORS 197.445 and the resort map apply. This Court found in COLW that, “Unlike ORS 197.455, which concerns the identification of land and the mapping process, ORS 197.445 concerns the second discrete step in the establishment of destination resorts—that is, the approval standards for individual destination resort proposals.” COLW at 172. Lipscomb offers a tortured read of the statute, arguing that lands mapped as “eligible” may not qualify to be “approved” to site a destination resort. IP Br 8. Lipscomb argues that “times change and with those changes lands previously mapped as ‘eligible’ may not qualify to be ‘approved.’” IP Br 8. Lipscomb further argues that the City of Bend exceeds the 100,000 population threshold for qualifying lands for mapping under ORS 197.455(1)(a).14 IP Br 13. 14 Lipscomb mistakenly cites to the mapping criteria found at ORS 197.455(1) ORS 197.455(2)(a). IP Br 10, 13. Exhibit 120 Page 25 of 35 20 Lipscomb misunderstands the statute. The population threshold contained in ORS 197.455(1)(a) is applicable only to the County’s mapping of eligible lands. And, if the legislature had intended such requirement to apply for after the mapping of eligible lands, it would have included that requirement in ORS 197.445, which provides criteria for individual destination resorts and not the mapping eligibility requirements at ORS 197.455. Lipscomb cites no authority that holds that the population threshold applies after lands have been mapped as eligible for destination resort siting. Lipscomb argues that the “actual current conditions” control and that ORS 197.455(1)(a) allows resort development but limits residential development to staff housing only. IP Br 14-15. This argument concedes that a destination resort and golf course may be sited on land within 24 air miles of a city with a population of 100,000 and does not prevent approval of the Thornburgh golf course. IP Br 15. Additionally, Lipscomb’s argument that residential development is limited to staff housing is properly rejected. The statute plainly states that “[a] map adopted pursuant to this section shall be the sole basis for determining eligibility.” Id. The statute also provides that such map may be amended as part of a post-acknowledgement procedure pursuant to ORS 197.610 to 197.625, but only once every 30 months not during the review of site plan applications. ORS 197.455(2). Exhibit 120 Page 26 of 35 21 B. A Golf Course Site Plan Does Not “Site” a Resort Lipscomb attempts to distinguish the terms “eligible” and “siting”, arguing that mapping is not siting and that the CMP and FMP approvals “are just planning for future siting, rather than actual siting.” IP Br 9. According to Lipscomb, “siting” does not take place unless and until a site plan is approved. IP Br 9. That is incorrect.15 Once mapped as eligible, a resort may be sited and developed. In this case, Thornburgh Resort has obtained approval of a conceptual master plan (CMP) and a final master plan (FMP) that authorizes resort development, including construction of the improvements proposed here.16 DCC 18.113.010 describes this process: DCC 18.113.010. Purpose. A. The purpose of the DR Zone is to establish a mechanism for siting destination resorts to ensure compliance with LCDC Goal 8 and the County Comprehensive Plan. The destination resort designation is intended to identify land areas which are available for the siting of destination resorts, but which will only be developed if consistent with the purpose and intent of DCC 18.113 and Goal 8. Once a property is mapped (pursuant to ORS 197.455(2)), the map 15 We also point out that Phase A-1 included site plan review and approval for utility facilities. That approval was not challenged and is not part of the remand of that case. 16 Phase A-1 remains pending in a narrow remand proceeding. Exhibit 120 Page 27 of 35 22 allows development of a destination resort, so long the other requirements of state law are met. See ORS 197.455(2); See also DCC 18.113.020(A). If land is mapped as eligible, an applicant may apply for and receive approval of a conceptual master plan (CMP) and conditional use permit that site the resort. See DCC 18.113.040(A). The CMP assures compliance with the requirements of the County’s resort code that implement state law. See DCC 18.113.050 – 18.113.070. The CMP is the original, guiding document that allows siting and addresses all impacts of the proposed destination resort. DCC 18.113.050 – 18.113.070 impose detailed criteria related to a proposed site such as acres developed, natural features, requirements for traffic study, how development will occur, design guidelines, open space management, public facilities, utility facilities, and an “explanation of how the destination resort has been sited or designed to avoid or minimize adverse effects on adjacent lands” (emphasis added), among many other requirements). Once a CMP is approved, a resort is “sited” for purposes of ORS 197.455. Once a CMP is approved, the applicant must prepare a final master plan (FMP). The FMP must “incorporate all requirements . . . of the CMP.” DCC 18.113.040(B). The FMP then subsumes the CMP and “shall be treated as a land use permit in accordance with DCC Title 22”. DCC 18.113.040(B). Lastly, in order to actually develop the sited destination resort, specific site plans for each phase must receive additional approval. DCC 18.113.040(C). Exhibit 120 Page 28 of 35 23 This make sense, because it is at that time that the development must comply with subdivision and site plan criteria that specify the details of how master planned development will occur. Further, DCC 18.113.040(C) (and indeed, most of the rest of DCC 18.113) directly contemplates phasing of development. If ORS 197.455(1)(a) could suddenly bar approved future phases because of a population increase of a nearby UGB, the provisions permitting phased development or reliance upon a final binding land use decision (the CMP or FMP), would be meaningless. That would be an absurd result. C. Foland v. Jackson County is Inapposite to the Facts Presented Lipscomb’s reliance on and interpretation of Foland v. Jackson County, 101 Or App 632, 792 P2d 1228 (1990), aff’d 311 Or 167, 807 P2d 801 (1991), is incorrect. Lipscomb states that this Court previously “dealt with a similar problem and *** reached this same result: compliance with ORS 197.455(2) should be measured by current conditions, and not just by the conditions present previously at the time of original mapping.” IP Br 10. That interpretation misapplies the Court’s decision. The Court’s Foland decision held that additional evidence may be considered when amending a destination resort map and allowed siting a resort on the newly mapped land. Foland, 104 Or App at 635-636. It does not stand for the proposition that the mapping rules of ORS 197.455 apply after resort Exhibit 120 Page 29 of 35 24 siting has been approved or that mapping criteria under ORS 197.455(1) apply to bar subsequent development approvals. Foland does not authorize a county to ignore the plain language of ORS 197.455(2) that dictates that maps adopted under that statute shall be the sole determinant of whether a resort may be sited on a particular tract of land. In Foland, the petitioners sought review of a LUBA order and contended that LUBA had erred in holding that “decisions [to amend a resort map and to site a resort on that land] could be based on later studies and maps . . . rather than solely on the county’s adopted destination resort siting map. Foland, 101 Or App at 634. In that case, the county had adopted a specific map within its comprehensive plan determining which lands were eligible for destination resort siting. Id. The county’s comprehensive plan, however, also included a “refinement clause” which allowed an applicant to use “more precise soils resource mapping” to determine eligibility. Id. at 635. The applicant provided such information and the county approved siting eligibility, including adopting amendments to the comprehensive plan and zoning maps based upon that data. Id. at 634-635. Petitioner’s challenged use of the new maps to determine resort siting, arguing that county’s original map was the “sole method for determining eligibility” and that only the original soil maps were allowed. Id. at 638. Petitioners also argued that such changes evaded review under Goal 8. Id. at 634. The court rejected that argument and determined that supplemental Exhibit 120 Page 30 of 35 25 mapping – as permitted by the refinement clause – was consistent with the statute. On review, the Supreme Court of Oregon affirmed. Foland v. Jackson County, 311 Or 167, 807 P2d 801 (1991). In its opinion, the Supreme Court provided analysis regarding comprehensive plan amendments and opined that once an amendment to an acknowledged plan is itself acknowledged, it is “insulated from scrutiny for goal compliance[.]” Id. at 179. The Supreme Court held that changes to the destination resort map using the refinement clause were allowed because the refinement clause was acknowledged and therefore no longer subject to review. On that basis, the Supreme Court held that “the county is not bound by its original map of ‘Areas Excluded from the Goal 8 Resort Siting Process” and may adopt an amended map of eligible lands. Id. at 181. Notably, both the Court of Appeals and the Supreme Court still relied on the destination resort maps – which had been updated as part of the application to prove eligibility. Nothing in the case or its disposition support Lipscomb’s argument that the existing and acknowledged map cannot or should not be relied upon, or that the map must or even may be revisited for each and every subsequent phase of destination resort development. LUBA’s order here is consistent with both the statute and the Foland decisions. The statute is clear. Siting eligibility is determined by inclusion on the relevant map. Thornburgh is included in the County’s map. LUBA Rec 166. Exhibit 120 Page 31 of 35 26 This assignment of error is properly denied. CONCLUSION LUBA’s order is well-reasoned and correct. This court should affirm it. DATED: August 12, 2021. SCHWABE, WILLIAMSON & WYATT, P.C. By: s/ J. Kenneth Katzaroff J. Kenneth Katzaroff, OSB #143550 Schwabe, Williamson & Wyatt, P.C. 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711 Email: KKatzaroff@schwabe.com Of Attorneys for Respondent Kameron L. DeLashmutt Exhibit 120 Page 32 of 35 1 PDX\135849\262760\JKKA\31502048.1 CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS I certify that: (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b); and (2) the word count of this brief—as described in ORAP 5.05(2)(a)—is 5,732 words. I certify that the size and type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f). DATED this 12th day of August, 2021. Respectfully submitted, SCHWABE, WILLIAMSON & WYATT, P.C. By: s/ J. Kenneth Katzaroff Kenneth Katzaroff, OSB #143550 Email: kkatzaroff@schwabe.com Of Attorneys for Respondent Kameron K. Delashmutt Exhibit 120 Page 33 of 35 2 PDX\135849\262760\JKKA\31502048.1 CERTIFICATE OF FILING AND SERVICE I certify that on August 12, 2021, I filed this RESPONDENT KAMERON L. DELASHMUTT’S ANSWERING BRIEF with the State Court Administrator by the Oregon Judicial Department’s Appellate eFiling system. I further certify that I serve this RESPONDENT KAMERON L. DELASHMUTT’S ANSWERING BRIEF on the following parties by the Oregon Judicial Department’s Appellate eFiling system (with courtesy copy by e-mail): Jeffrey L. Kleinman, OSB #743726 Email: KleinmanJL@aol.com 1207 SW Sixth Avenue Portland, OR 97204 Telephone: 503-248-0808 Attorney for Petitioner Annunziata Gould Paul J. Lipscomb, OSB #752301 Email: judgelipscomb@gmail.com PO Box 579 Sisters, OR 97759 Telephone: 503-551-7272 Attorney for Petitioner Paul J Lipscomb David Adam Smith, OSB #170317 Email: adam.smith@deschutes.org Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Telephone: 541-388-6593 Attorney for Respondent Deschutes County Exhibit 120 Page 34 of 35 3 PDX\135849\262760\JKKA\31502048.1 SCHWABE, WILLIAMSON & WYATT, P.C. By: s/ J. Kenneth Katzaroff Kenneth Katzaroff, OSB #143550 Email: KKatzaroff@schwabe.com Schwabe, Williamson & Wyatt, P.C. 1420 5th Avenue, Suite 3400 Seattle, WA 98101-4010 Telephone: 206-622-1711 Attorney for Respondent Kameron K. Delashmutt Exhibit 120 Page 35 of 35 Exhibit 114 Page 1 of 6 Exhibit 114 Page 2 of 6 Exhibit 114 Page 3 of 6 Exhibit 114 Page 4 of 6 Exhibit 114 Page 5 of 6 Exhibit 114 Page 6 of 6 PO Box 1597, Redmond, OR 97756 ThornburghResort.com September 7, 2021 GREGORY FRANK, HEARINGS OFFICER C/O WILL GROVES, SENIOR PLANNER DESCHUTES COUNTY COMMUNITY DEVELOPMENT DEPARTMENT 117 NW LAFAYETTE AVENUE BEND, OREGON 97703 Dear Hearings Officer Frank: I am writing to respond to comments filed by David Arnold in his letter dated August 30, 2021. I want to make it clear that while Pinnacle Utilities, LLC has been acquiring water rights from sources other than Big Falls Ranch, those water rights are currently not being used. As a result, those water rights are providing benefits for fish and wildlife by increasing the flows of Central Oregon creeks and rivers. Mr. Arnold, while complaining that Pinnacle has substantial water rights other than the BFR rights, overlooks the fact that the resort is not using them. The result is that a substantial amount of water is being left in the river. In the case of LeBeau, Thornburgh has transferred 50 acres (200 acre-feet) of water directly instream. This water is providing benefits to fish and aquatic habitat, for which OWRD has sent a thank you letter. See enclosed photograph of letter dated June 30, 2021 from Sarah Henderson of OWRD. The LeBeau water is the equivalent of 90 acre-feet of mitigation water. The Tree Farm water is .453 cfs of quasi-municipal ground water which is the equivalent of 327 acre-feet of water or 182 acre-feet of mitigation water (327/1.8). In addition, Thornburgh has 16.5 acres of groundwater (29.7 acre-feet of mitigation water) acquired from Dutch Pacific that has been allowed to flow to the river since 2019. Thornburgh also acquired DRC mitigation credits long ago that are equivalent to 6-acre feet of mitigation. As noted by OWRD watermaster Jeremy Giffin, Thornburgh has been providing this mitigation without using any water. These water rights that are being allowed to flow to or in the river total an equivalent of 307.7 acre-feet of mitigation water. This is over and above the 90 acres of BFR water (162 acre-feet of mitigation) Pinnacle recently acquired which, also, is not being pumped. This results in 469.7 acre-feet of mitigation water not being used. As noted in the record, the total BFR water currently allowed to flow to the creek presently is 836 acre-feet of mitigation water. When it is added to the 307.7 acre-feet of mitigation water owned by Pinnacle other than the BFR water, it yields mitigation of nearly 1,144 acre-feet. The fact that opponents try to twist leaving water in the river into a negative instead of embracing the benefits provided, indicate that river health is not their real concern. Exhibit 122 Page 1 of 3 Mr. Kleinman uses words like critical and delicate balance in his post-hearing comments and says: “The source of Thornburgh’s mitigation water is not merely relevant but is critical to the entire “delicate balance” to which we have referred to previously.” In the same submittal, he quotes extensively from the FWMP with the apparent aim of showing that there are very substantial impacts that must be addressed and that the solutions have little room for error. Mr. Newton speaks to in his letter today quoting conclusions reached on page 12 of the FWMP which clearly says that with OWRD mitigation only (quantity mitigation from the General Zone of Impact above the Madras gage), temperature/water quality impacts are negligible and the resort will not result in any quantifiable negative impact to fish habitat. See Newton Memo 9/7/21. The FWMP outlines the fish habitat that is potentially affected (See page 7, section IV) and discusses the discussions with ODFW saying: “Although the OWRD rules and USGS study on which the rules are based do not directly address temperature issues, ODFW also recognized that with the flow replacement required under OWRD rules the potential impact to temperature as a result of the Thornburgh project – or any similar individual project – is expected to be negligible. However, ODFW acknowledged a concern about the potential for cumulative impacts from on-going groundwater development in the basin over time.” On page 8, the FWMP notes that: “NCI determined the potential temperature impacts attributable to the project are expected to be slight and below levels that can be effectively measured.” Even though the resort’s impacts on stream temperatures were not measurable, ODFW was concerned with the cumulative impacts of other groundwater development. Because of that concern, we’ve litigated this issue for 13 years, spending hundreds of thousands of dollars in every possible jurisdiction. That is why even after putting the Deep Canyon spring water in the river, project opponents continue to construct phantom issues to complain about -- issues that have nothing to do with the issue on remand. Thank you for your consideration of my comments. I realize they do not relate to the issue on remand because the source of mitigation water for the Phase A-1 tentative plan is Big Falls Ranch but feel it is helpful to understand the broader picture in order to determine that most of the issues raised are, in fact, irrelevant to the issue on remand. Sincerely, Kameron DeLashmutt Exhibit 122 Page 2 of 3 Exhibit 122 Page 3 of 3