HomeMy WebLinkAbout2021-05-24 508-SP App MtrlsTES
File No.247-
O
COMMUNITY DFVELOPMENT
''/.ND
USE APPLICATION
INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED
1. Complete the application form and provide appropriate original signatures. To ensure timely
processing of your application, all materials must be submitted on single-sided, g.5', x 1 1,, paper.
Do not use binders, tabs/dividers, staples or tape.
2. This application shall include one full-sized plan set (to scale) and one plan set reduced to nolarger than
11" x17". lnclude a plot plan that shows all property lines and existing and proposed structures,parking, landscaping, lighting, etc.
3. lnclude a copy of the current deed showing the property owners.
4. Attach correct fee.
5. All applicable standards and criteria must be addressed in writing prior to acceptance of theapplication. Detailed descriptions, maps and other relevant information must be attached tothe application.
TYPE OF APPLICATTON (check one):FEE:
Administrative Determination (AD)_
Conditional Use (CU) _
Declaratory Ruling (DR) _
Partition (Mp) _
Subdivision (TP) _
Temporary Use (TU) _
Site Plan (SP) X
Variance (V) _
Setback Exception (SE) _
Other
Kameron Delashmutt and
Applica nfs Name (pri nt):Central Land and Cattle Co , LLC
Mailing Add 2447 NW
Phone: (541 ) 350-8479
Citylstate/lip: Redmond, OR 97756
Applicant's EmailAdd kameron@ bendcable.com
Property Owner/s Name (if differe same (Central
Mailing Address
Land)Phone: L_J
City/State/Zip:
1 Site Plan Review of Overnight Lodging Units
2. PropertyDescription: Townshipl!_nange_l3_section 00 Tax 7700 & 7800
3. Property Zone EFU/DR Property Size (acres or sq.See site plan fr&8
4. Lot of Record? (State reaso Prior as a lot of record CMP Decision
5. Property Address 67205 and 67555 Cline Fails Road, Redmond, OR 97786
(over)
11 7 N'tv Lafayette Avenue, Bend, oregorr 97703 | p.o. Box 6o05, Bend, oR 9770g 6005
t3t (541) 388-6575 @ cdd@cieschutes .org {$ www.deschutes.orglcd
Rev 5/18
6. Present Use ofPro agricu Itural land and open space; future destination resort ;dwelling
7. Existing Structu residence an
8. Propertywill be served by: Sewe Pinnacle Utilities Onsite Disposal System_
9. Domestic Water Sou Pinnacle Utilities
To the best of my knowledge, the proposal complies with all previous conditions of approval and all
other applicable local, state, and federal laws. By signing this application, I acknowledge that
Deschutes County planning staff may make a site visit{s) to the address(es) listed on this application
in order to evaluate the property(ies) with the Deschutes County Code criteria applicable to the land
use request(s) submitted. Please describe any special circumstances regarding a potential site visit:
Please contact Kameron Delashmutt to arrange a site visit.
Applicant's Sign Mav 21,2021
Property Owner's Signature (if diffe na
Agenfs Name (if applicable Liz Fancher, Attorney Phone: f541 t 385-3067
Mailing Add 2465 NW Sacagawea Ln City/State/Zip:Bend, OR 97703
Agenfs EmailAddres liz@ lizfancher.com
co-counsel: Ken Karzaraff , schwabe, williamson & wyatt (seatile office)
*lf this application is not signed by the property owner, a letter authorizing signature by the
applicant must be attached. By signing this application, the applicant understands and
agrees that Deschutes County may require a deposit for hearings officers'fees prior to the
application being deemed complete. lf the application is heard by a hearings officer, the
applicant will be responsible for the actual costs of the hearings officer.
1 1 7 NW Lafayette Avenue, Bend, oregon 97703 | p.o,.Box 6005, Bend, oR 97708-6005
E (541) 388 6575 @ cdd(adescl'rures .org (p www.deschures.org/cd
Affter recording return to:
Central Land and CattleCompany LLC
c/o Kamcron llelashmutt
2447 nnW Canyon
Redmon4 OR97756
Until a change is requested, aII taxstatements shall be sent to the following
address:
Central Land and Catfle Company LLC
c/o Kameron Delashmutt
2447I\tW Canyon
Redmond, OR 97756
LOYAL LA& Tg._:f erqq liggd liabitity company, Grantor, conveys toCENTRAL LAND AND CATTLE coMPANy LLC, an bt"gon tinaited tialiiity company,Grantee, the following described real property situatd io no"n"6" C*ty, Ot"g*, to wit
See Exhibit A auached hereto.
The tnre consideration for this conveyance stated in tqsrs of dollars is $1e700,000,
BEFonE srGNrNG oR ACCEPTTNG rErs rNsrRUMENr, THF pERsoNTRANSI'TRRING F.EE TITLE SHOULD INQUIRE anOUr rlin pUilSoNlS RrcHTS,IF AI[Y,I]hil]ER ORS 195300' r9530l eNUigssm fo rrsS36 AI\rD SECTIONS s To$:cflAprEBJ?4 OREGON L\wS 2002 sDcTrous z rol ANDi{CHAPTER 8ss,gSGON LAWS 200% AND SECTTONS i rO z, cuaprnn r, onrccbx r,ews 2010.THIS INSTRTJMENT DOES NOT ALTOW US$'OTrM PROfER,rr' UTJSCNMEN NiIS_INStEU_ryrurm rN vroLrrK)N Or Appr,lcau,u rAND USE rlrws ANr)REGTIII\TIONS. BEX]ORE SIGI{ING OR ACCTPTING rMS NqflRU[mNT, THElT1$soi AqaIlnDIG FEE-irffi To rHE rnopnnrv snoriu) cmcK wrrflTm APPROPRTATE cTrY oR COUNTY PLANNtr{CDEpARTnffNi To vunrrrTflAT TTN UNIT OF I.A.ND BEING TRANSFERRED IS A IIIWFIILLYESTABLISTED LOT _OR PARCE_I4 AS ITEFINEO nV-OnS 92.010 On zrs.oro, ToVERIFT Tm APPROVET) UsEs oi'ru LoT oR rancrr,, ro-onrnnmrs mrvLIMITS ON I,AWSUITS AGAINST T.ARMING O[ rOriNSr rNE-CrrCNS, ASDETINEI' IN ORS--3O930, A}iD TO trTQUIRE
_ABOUT rM- NIbNTS OFNEIGHBORING PROPERTT O\ilNERq IF A}TY, UNDER bNS rgSJOO, rgi.SOr AND195.30s rO 195336 AriD SECTTONS s ro rr, cHAprER 424, OREGON r,nWS ZOOiSECTTONS 2 TO 9 Nq tz, CHAPTER eSS, OnTCON r.ews 2009, AI,rD'SnCrrons zTO 7, CflAPIER E, OREGdN rAWS 2010. .
fSign*re page and acktow lcdgement follow J
Page I - STATT-IORY BARGAIN ANID SALE DEED
DATEDthis /3 dayof WogfA zOrT
LOYAL LAIVD, LLC,
an Oregon limit€d liability company
STATE OF TEXAS
) ss.
Cotrnty of )
This instrum€,ntwas acknouiledged before me
Terrence Larsen as a member of Loyal Land, LLC, an
behalf of said company
OF
€ARY MlROi.,I
Notorv Pirblic. Sioie oi iexo$
C oFrm. Expires A2-24 -2Ai 9
|\lctory lD 'l24$8C43-2
on (M 2At7 by
Oregon limitd lisbility company, on
Notary Terras
Page 2 - STATUTORY BARGAIN AItrD SALE DEED
EXHIBITA
Parcel I
The Southeast Quarter of the Southeast Quarter (SE1/4 SEI/4) of Section 29, Tovarslip 15South Range 12, East of the Willamette Meridian, Deschutes Couilty, Oregon. (I5-12-Zg0l)
Parcel2
The Norftwest Quarter of the Southeest Quarter (NWl/4 SEI/4) of Section 29, Township 15
South" Range 12" East of the Willamette Meridian, Deschutes County, Oregon. (15-12-7900)
Parcel 3.
In Township l5 Scx.rth, Range 12, East of the Willamette Meridian, Deschutes County,
Oregon" Section 29: Northeast Quarter, East Half of the Southeast Quarter, Southeasi eurterof the Northwest Quarter, Southwest Quarter of the Norftwest Qrarter, Northeast euarter ofthe Southwest Quarter and the Northwest Quarter of the Sq,rthwest euarter (NEl/4;Et/2sEl/4 sEl/4, NWI/4, SWl/4 NWI/4, NEl/4" SW1/4, NWI/4, SWl/4) 1tS-tz-ztito;
EXCEPTING TIIEREFROM the Southeast Qrarber of the Southeast Qgarter (SEt/4 SEll4).
TOCIETIIERWITTI:
In Toumship 15 South, Range 12, East of the Willamette Meridian" Deschutes County,
Oregon, Section 30: The Southeast Quarter of the Northeast auarter {SEll4 NE1i4) *O tfr"
Northeast Quarter of the Sourheast auafi€r (NEl/4 SEli4).
Parcel4
The East Half of the Northwest Quart€r (E l/2 NW l/4), the Scnrth llalf of the Southwest
Quarter (S1/2 SW1/4) and the West llalf of the East Half (Wl/2 El/2) of Secti on yI:
TheNorthwestQuarter(Nwl/4)thewestllalfoftheNortheasrQuarier (wvzNEl/4),the
North tlalf of the Southwest Quarbr (Nl/2 SW1/4), the Southwest Quarter of the Sogthwest
Quarter (SWt/4 SWl14) of Section 2Q Township 15 South, Range lz,Eastof the Willamete
Meridian.
EXCEPTING THEREFROM:
TractA:
Beginningattheconteronqquart€r(ll4)cornerof Section20, Toumship 15 South,Range 12,
East of the Willamette Meridiaq the tnre point of beginning; thence North 88"4426u West
along the center line 653.40 fee! ttence Norlfi 00"06'54" East 200.00 feet, thence South
88"M'26" East 653.40 feet to the North-South center line; thence South 00o06'54" West 200.00
feet to the frue point of beginning.
Page I -E)CIIB[[ A
Trs.ptE:
Beginning at the South Center on+sixtetrittr (l/16) corner of Section 2e Township lS South,Range 12, East of the Willamette Meridia4 thence North 00o06'54n Easi along the Wor*r-
South center line 779.75 fet to the true point of bqinning, thence North gg053'06" West208,71fee$ thence Noflh 00"06'54o East 208.71 feeg thence South 89"53'06" East 208.71 feetto the said c€nter line; thence South 00"06'54*West alomg said center line 208.71 feet to fietue point ofbqginning.
Parcel 5
The Northeast fuarter ofthe Southeast Quarter (NEl/4 SE114) and the South tlalf of the
!91$cast Quarter (sl/2 sEll4) of section 20; tle southwest Quarrer ofthe southwest Quarter$Wl4 SWI/4) of Section 21; the North Half (N1/2) aad the Norrh llalf of rhe South llatf(Nt/2 Sll2) of Section 28, all in Toumship 15 South, Range 12, East ofthe WillameneMeridian" Deschutes Cornty, Oregon.
EXCEPTING:
Tract C:
Be-ginning at the East 1/4 comer of Section 20, Township 15 South" Range 12, East of theWillamette Meridian" Deschutes County, Oregon, the tnre point of 6egir;ring;'thence South00o06'37u West alongtheEast line of said Section 2O,2083l feet thJnce Wirtl gg"4426,
W€st' 208.71 feeq thence North 00o06'37n East, 208.71 feet to the East-West center line ofsaid Section 20; thence Sor$h 88"44'26' East along said center ling, 2OB.7l feet to fte truepoint of beginning.
Parcel 6 (15-12-5001, 15-12-5 OOZ,, tS-tZ-77A1)
TractA:
Begrnning atthe center !14 comer of Section 2Q Toumship 15 South, Range l2,hstof theWillamette Meridian, Deschutes Co.rrty, Oregon, the fiue point o beginndg; ftence North88"44'26o West along the center ling 653.40 fee{ thence North 00"G,54n East, Z00.oo f*tthence Sorth 88"44'26" Bast, 653.40 feeq to the North-South centsr line; thence South00"06'54o West, 200.00 feet to the tnre point of beginning.
TractB:
|"ql$og attheSouth center l/16 comer of Section 2Q Toumship 15 South, Range 12, East ofthe Willamefte Meridian, Deschutes County" Orqgon; thence North 00"06'54; EaJatong theNorth-South center line, 179.75 feet to the tnre point of beginning; thence Norttr 8go53,06uWesL 208.71feeq, thence No'rth 00"06'54u East,208.71 feit; tlence South g9o53,06n Eas!208-71feet to the said center line; thence South 00006'54* West along said center line, 20g.Tlfeet to the true point of beginning.
Page 2 -E)CIIBIT A
Trect G:
Beginning attheEast 1/4 comer of Section 2Q Toumship 15 Sdrth, Range la East of the
Willamette Meridiaru Decclut€s County, Oregon, the fiue point of beginning thence Sorth
00"0637* West along the East line of said Section 20,218.71feeq thence North 88o44,26n
West, 208.71 feet; thence North 00006'37" East 203.71 fest to the East-West cetrter liue of
said Sectim 20; thence Scnrth 8804426' East along said center line, 208.?l feet to the fire
point of beginning.
G$B:9fiI7Jl& I Btl l9-{ntO0l
Page 3 *$GIIBIT A
; BEFORE THE DESCHUTES COUNTY
COMMUNITY DEVELOPMNNT DEPARTMENT
APPLICANTIOWNER:Central Land and Cattle Company, LLC
2447 NW Canyon
Redmond, OR97756
54 1 -350-8479 (telephone)
kameron@.bendcable. com
CO.APPLICANT:Kameron Delashmutt
2447 NW Canyon
Redmond, OR97756
541 -350-8479 (telephone)
kameron@bendcable. com
ATTORNEY:Liz Fancher, Attorney
2465 NW Sacagawea Ln
Bend, OR 97703
54 I -3 85-3067 (telephone)
liz@lizfancher.com
APPLICATION:Site Plan Review for Ovemight Lodging Units (OLU's).
Tax Lots 770A & 7800, Assessor's Map 15-12-00.
BURDEN OF PROOF
SUBJECT PROPERTY:
I. APPLICABLE CRITERIA AND STANDARDS
The fbllowing laws and regulations may apply to the County's review of this application:
Title 18 of the Deschutes County Code, County Zoning Chapter 18.04, Definitions,1. Chapter 18.160 Exclusive Farm Use Zone2. Chapter 18.113, Destination Resorts Zone3. Chapter 18.116, Supplementary Provisions4. Chapter 18.124, Site Plan Review
il. PROPOSED FINDINGS OF FACT
I SUBJECT PROPERTY
The subject property is comprised of land located within the boundaries of Tax Lots 7700 &
7800. Assessor's Map 15-12-00. Deschutes County has approved a tentative plan that authorizes
the creation of lots for development with overnight lodging units.l The address of the tax lots
proposed for development is 67545 & 67555 Cline Falls Road" Redmond, Oregon 97756.
I The tentative plan was appealed by Annunziata Gould. which is discussed below
Page I - Site Planfor (hernigkt Lodging at Thomburgh Resort
2. ZONING
The subject property is zoned EFU-SC with an overlay of Destination Resort (DR). The
applicant has obtained final approval of a Conceptual Master Plan (CMP) and a Final Master
Plan (FMP) from Deschutes County. The CMP is fully incorporated into and met by approval of
the FMP. As stated by LUBA when reviewing the FMP:
"All requirements of the CMP approval are now requirements of the county's FMP
approval. The FMP approval has effectively incorporated and displaced the CMP
approval."
Gould v. Deschutes County,74 Or LUBA 326,346 QAI6)
3. APPLICATION
The applicant is seeking site plan approval for ovemight lodging units authorized by the CMP
and FMP. The site plan ("Site Plan") is being filed with a land use application form and this
burden ofproof.
4. SITE DESCRIPTION
The subject property is a part of a tract of approximately 1980 acres of land adjacent to Cline
Buttes that has been approved for the development of the Thornburgh Destination Resort. The
subject property is mostly undeveloped land with sloping terrain, natural vegetation. rock
outcroppings and ridge tops. The property adjoins and lies west of Cline Falls Road.
5. LAND USE HISTORY
Conceptual Master Plan: The Deschutes County Board of Commissioners approved a conceptual
master plan (CMP) for the resoft in File CU-05-20 on May 10,20A6. 'Ihe decision was appealed
by Annunziata Gould and Steve Munson and remanded. The CMP was againapproved on
remand by the Board of Commissioners in April 2008 in County Document No. 2008-1 51. Ms.
Gould unsuccessfully appealed the 2008 approval. Approval of the CMP was final on December
9,2009. The CMP requires the development of ovemight lodging units (as apartof Phase A of
the resort).
Declarator\t Ruling: Loyal Land Cornpany filed a declaratory ruling regarding the status of the
CMP in 2011. The County twice approved the application. The curent status of this matter is
that it has been rernanded to the County by the Oregon Court of Appeals and LUBA. Loyal Land
has not initiated a review on remand. This application is rnoot, however, because the resort's final
master plan (FMP) incorporates and satisfies all conditions of the CMP and has received final
approval.
Final Master Plun: Thornburgh Resort Company filed for approval of the FMP in 2007. lt
amended the application in 2008. The application was approved by the County, appealed by Ms.
Gould and remanded by LUBA to address issues regarding the Thomburgh Wildlife Mitigation
Page 2 - Sile Plan frtr Overnight Lodging at Thomburgh Resort
Plan (TMP). In 2015 a County hearings officer denied approval of the remanded FMP. Central
Land and Cattle Company, LLC successfully appealed the denial. On remand, the FMP was
approved by the county. Ms. Gould again appealed the FMP approval. LUBA affirmed the
County's approval, and the FMP is final.
Tentative Plan Phase A-l: In May 2018 Central Land and Cattle Company, LLC ("Central")
filed for approval of its Phase A-l Tentative Plan. which was approved by hearing officer Dan
Olsen in October 2018, appealed by Ms. Gould, and remanded by LUBA.2 Gould appealed the
LUBA decision to the Court of Appeals ("COA"), who disrnissed her appeal as it was not filed
timely. Gould appealed that dismissal to the Oregon Supreme Court, challenging the order of
dismissal. On December 3l ,2020 the Supreme Court remanded the decision to the COA to take
further action. On April 21,2021, the Oregon Court of Appeals affirmed LUBA's decision
without issuing an opinion. After the COA dismissed Gould's appeal, the applicant initiated a
review on remand. Hearing Olficer Olsen declined to decide the remand on the merits and the
applicant appealed to the Board of County Commissioners ("BOCC" or o'Board"). The BOCC
approved the Tentative Plan in November 2019. Gould appealed the BOCC approval to LUBA.
This appeal is pending.
Site Plan - Golf Course and Lakes: In Decernber 2019, Central filed for approval of the Golf
Course and Lakes site plan. This site plan was approved administratively in April 2020by
Deschutes County Planning. Ms. Gould appealed. The Board of Commissioners ("BOCC")
heard the appeal and affirmed the administrative approval on Augu st 3I,2020. On September
16, Ms. Gould filed a notice of intent to appeal. That appeal is pending.
Collateral Attacks on Prior Approvals: Integral to the BOCC decision affirming approval of the
golf course and lakes site plan was the applicant's claim that many arguments raised by
opponents were impermissible collateral attacks on the CMP and FMP The BOCC agreed
stating:
"The BOCC Jinds that many issues raised by Appellants in these proceedings were either;
i) raised and resolved against the otrtponenls in previous stoges oJ'the resort's multi-stage
approvals process, or: ii) could have been raised dw'ing the review rf'the CMP or FMP
but u,ere not. Where this is tlte case, the issue is settled and not grounds .for denial oJ'a
Stuge 3 reviev,appliccrtion [a site plan or tentative plan]. Under the principle of collateral
uttack, a land use decision intended to serve as afinal determination ofa landuse issue
such as the Thornburgh CMP and FMP may not be challenged in a later proceeding that
implements or relies on the ecu^lier, final decision. LUBA has explained the rule ss
Jbllows:
'As a general principle, issues that were conclusively resolved in a.final
2 Tlie tentative plan was appealed by Ms. Gould on two main issues, whether approval of the tentative
plan creates a new phase of development and, whether OWRD's approval of an incremental development
plan is a modification of the aquatic species part of the Wildlife Mitigation Plan fbr the Resort klown as
the FWMP and if the hearings officer's allowance of a clrange in the source of mitigation water, if
needed. provided for adequate public input about the change.
Page 3 - Site PIan -for Overnight Lodging at Thornburgh Resort
discretionary land use decision, or thcrt could have been hut were not
raised and resolved in that earlier proceeding, cannot be raised to
challenge a subsequent applicationfor permits necessary to camyoutthe
earlierfinal decision.' Safeway, Inc. v. City ofNorth Bend, 47 Or LUBA 189,
500 (2004) (citutions omitted)."
BOCC Decision, File 247-19-000881-SP et al,p. 4.
The BOCC also commented:
" LUBA's upplication oJ-the no collqteral attackrule in Gouldv. Deschutes County, _Or
LUBA _(LUBANo.20lB-140,June21,2019)isinstt"uctive. Inthatcase,LUBAheldthat
challenges to issues settled hy the CMP and FMP are impermissible colloteral attacks on
the Thornburgh CMP and FMP. LUBAfoundthat challenges to Resortplans.for Overnight
LodgingUnits(OLU) and the wildly'b mitigation plan,c are not permissible. Specifically,
LUBA found that the removal rf dams on Deep Canyon Creek andthe provision of
mitigation waler is required by the FMP andis not relevant to lhe review ofthe tentative
plan because the tentative plan did not alter the miligution plan that is a part of the
FMP. ''
BOCC Decision, File247-19-000881-SP et al, p. 5.
Dwing review of the golf course site plan File247-19-000881-SP et al, the applicant provided
details on 17 categories of issues that were previously resolved and are impermissible collateral
attacks, including those mentioned by LUBA above. The BOCC agreed finding:
"In the record, the Appliccrnt identiJied arguments lhat are imperntissible collateral
attacks anc{thespecificissuesbarredbytherule.TheBOCCsummarizescollatercrlattack
arguments and makes findings in Exhibit A, u,hich is incorporated in its entirety into this
decision. "
BOCC Decision, File247-19-000881-SP et al, p. 5
The BOCC's decision, including Exhibit Ao are referenced nllmerous times herein because the
document contains the Board's interpretation of its prior CMP decision and the destination resort
code, DCC Chapter 18.113. See Exhibit l: BOCC Golf Course Decision, Pages 4-6,18-42.
6. STiRROUNDING ZONING AND USES
The subject property is sumounded by iand zoned EFU-SC and OS&C. All adjoining and nearby
EFU-SC land owned by Centr:al Land and Cattle Company has, like the subject property,
received approval to be developed as apafi of the Thornburgh destination resort. Land northeast
of the subject property is zoned EFU-SC, SM, RR-10 and OS&C. The area includes an
unrecorded rural residential subdivision, the Eagle Crest Destination Resort, a cell tower and a
surface mine. The SM-zoned surface mine property is at least .75 mile away frorn the subject
property. The remainder of the surrounding land is owned by the USA, Deschutes County, and
the State of Oregon. The fuderal lands are part of the Cline Butte Recreation Area (CBRA) and
Page 4 - Site Plan for Overnight Lodging at Thornburgh Resort
are developed for public recreational use and conservation. Thornburgh will be performing
wildlife habitat enhancement work in the CBRA to offset impacts of resort development on
wildlife on the schedule established by the Wildlife Mitigation Plan (WMP) element of the FMP
7. LOT OF RECORI)
Tax Lot 7700 is comprised of a number of lots of record. The part of Tax Lot7700 that
comprises the subject property for this application is comprised of lots of record 1,2, 3 and 4 of
247-14-0A0450-LR. A copy of the decision approving 247-14-000450-LR is Exhibit 2 of this
application. Tax Lot 7800 is a single lot of record as determined by LR-91-56. Furthennore, the
entire Resort property was determined to be a lot of record by the BOCC's decision approving
the CMP, CU-05-20, DC 2006-11.
8. PROPOSED SITE PLAN
This site plan is proposing 80 units of overnight lodging. DCC 18.i 13.060(EX2005) and FMp
Condition 33a, say that the resort shall in the first phase provide for at least 150 overniglrt
lodging units. DCC 18.113.060(4)(1)(a) and FMP Condition 21 requires that 50 OLU;s be
provided prior to the sale or rental of any real estate. Approval of this site plan application will
enable the applicant to meet or exceed the 50 OLUs requirement. The 80 OLUs proposed by this
site plan will supply over half of the resort's 150 Phase A OLUs. Units over the 50 OLUs that
must be constructed to comply with Condition2l will be developed or financially assured, as
required by Condition 33 of the FMP and DCC 18.1 13.060 (2005), prior to the closure of sales,
rental or lease of any residential dwellings or lots.
Other Phase A elements, including additional OLUs, will be proposed in separate site plan
applications. The applicant is not attempting to evade any obligations imposed upon it by the
FMP by waiting to propose OLUs in a subsequent site plan. Instead, it is taking an orderly and
logical step toward providing all the Phase A resofi amenities required prior to the sale of
residential dwellings or lots by obtaining an approval that will allow to build at least 50 OLUs
prior to the sale of lots.
ilI. RELEVANT APPROVAL CRITERIA
FINAL MASTER PLAN
FINDING: The applicant has obtained final approval of an FMP from Deschutes County which
calls for OLUs to be constructed in Phase A. The applicant is required to demonstrate
compliance with the relevant conditions of approval imposed by the FMP. Each condition is set
out in full and is addressed below.
Approval is based upon the submitted plan. Any substantial change to the
approved plan will require a new application.
The applicant is not proposing a substantial change to the approved plans. The applicant is
requesting site plan approval of- golf course cottage OLUs in the general location allowed by the
I
Page 5 - Site Plan for Overnight Lodging ct Thontburgh Resort
FMP Master Development Plan Map A.3.I (See Exhihit 3). The site plan does not propose to
modifu any element of the FMP.
Location
The FMP prescribes the timing and amount of development of the ResorJ. not the specific
location of resort facilities. In the first phase of development, improved recreational and resort
facilities and overnight lodging units with a minimum dollar value must be provided before
Phase A residential lots may be sold. The site plan shows development in the same general
location as the FMP.
In his approval of the tentative plan, Hearing Officer Olsen noted that the Board's CMP decision
CU-05-20 found:
"'there will be some.fluidity between and among development phcses, depending on
market demand, weather and economic conditions. "' Hearings Officer Olsen also fbund:
"The Board read DCC I8.1 I3 as not requiring specificity, but only the general location
of proposed development uses (emphasis in original). ***This appeors to be consistent
v,ith the Hearings O/ficer decision vvhich states that the resort utill be developed in seven
phases (A-G) but that 'significantflexibility is required in the scheduling and phasing of
improvements'to accommodcrte changed conditions 'beyond the control o.f the
applicont.'p. 21. It note,s that 'some commercial ctnd recreationalfacilities at the resort
muy be deferued until the resort population warrants their constrltction. "'
Exhibit 4: TP A-l HO Olsen Decision, pp.20-23 (quoted rnaterial onp.22).
WildliJb Mitigatictn Plan.
Thornburgh's Mitigation Plan (TMP) is comprised of two plans, the Wildlife Mitigation Plan
which includes the monitoring plan (WMP) and. the April 2008 Fish and Wildlife Mitigation
Plan (FWMP). The development in the location depicted on the submitted site plan will not
cause any change in the terrestrial mitigation plan. The WMP spells out the monitoring and
reporting requirements that applicant is required to perform. and the enforcement measures
afforded the County, the BLM, and the ODFW. The WMP was found to be sufficient by
approval of the FMP after numerous challenges by Gould. The site plan does not propose or
require any change to the WMP. Under the WMP, mitigation is not required until sucl'r tirne that
impacts are created, the timing of which is discussed under condition #38 below. As the
applicant is not proposing any change to the WMP. no action is necessary. Futher the issue is
settled and barred fiom further attack as determined by LUBA and the BOCC in earlier
proceedings.
Fish and Wildlife Mitigation Plan (FWMP)
ln its decision regarding Gould's appeal of the Phase A-1 tentative plan. LUBA determined that
as long as a development application does not alter the FWMP, conditions of approval assuring
compliance with the FWMP are not required. In reiecting Gould's claim that conditions of
Page 6 - Site Plan for ()vernight Lodging at Thomburgh Resort
approval were needed to assure CLCC would do what is required by the FWMP, LUBA held:
"Intervenor respand$ and v,e agree, that remenal of the clams fon Deep Canyon
CreekJ and provision oJ'mitigationwater is required by the FMP approtol and
the tentalive plan does not alter the mitigation plan. *** The hearings officer v,as
not required to impose additional condition to the approval qf the tentative plan
[to assure compliance with the FWMPJ."
Gould v. Deschffies County,79 Or LUBA 561, 583 (2019). The same holds true for the cunent
site plan - the approval of the site plan will not alter the mitigation promised by the FWMp and
the requirements of the FWMP remain self-executing. When mitigation is required for this siteplan, the applicant will be using water from Big Falls Ranch to rnitigate for witer quantity andquality impacts of the golf course and lake development proposed under this application as well
as for the development approved under the Phase A-1 tentative plan. The applicant has entered
into a contract with Big Fall Ranch to purchase 175 acres of inigation watei iigtrtr fbr use asmitigation water (See.'Exhibit 5: Big Falls-Pinnacle Memo). This is 315 aqe-fbet of cold-
water mitigation water rights * more water than needed for all Phase A development. Since theBig Falls Ranch water is an allowable source in the FWMP. and the source provides ..cold
water" mitigation there is no change. Nothing further is required.
Wildlife Mitigation Plan MMP.)
Condition 38 of the FMP assures that the Resort will comply with the approved wildlife
mitigation plans. Compliance with the WMP is assured by annual County staff and wildlife
agency reviews of the mitigation plans and measures undertaken by the Resort; not by Countyreview of compliance during the review of a development application.3
For the reasons detailed above, this application is not a substantial change from the approved
FMP or Phase A-1 Tentative Plan and does not require a new application. This condition is met.
All development in the resort shall require tentative plat approval through Title 17
of the County Code, the county Subdivision/Partition Ordinance, and/or Site plan
Review through Title 18 of the Counfy Code, the Subdivision ordinance.
FINDING: The applicant is seeking Site Plan Review approval as required by this Condition 2.
3. Satisfied.
Subject to US Department of the Interior-Bureau of Land Management (BLM)
approval, any secondary emergency ingress/egress across the Bl.M-owned land orroadways shall be improved to a minimum width of 20 feet with all-weather resort
access surface capable of supporting a 60r000-lb. fire vehicle. Bmergency secondary
resort access roads shall be improved before any Final PIat approval or issuance of abuilding permito whichever comes first.
'r Extensive additional discussion of the WMP is provided below in our discussion of FMp Condition #38
Page 7 - Site Planfrtr Overnight Lodging at Thontburgh Resort
2
4
5
FINDING: The emergency secondary resofi access road requirement applies during tlie
county's review of a final plat or during building permit review. It is not a condition of site plan
approval for OLUs. Furthermore. the County has determined that the roads proposed by the
Phase A-1 tentative plan and Golf Course Site Plan providing access to the comrnunity will
satisfu this criterion. The County's resolution of this issue was not challenged by Ms. Gould in
her appeals of the tentative plan and golf course approvals.
The developer will design and construct the road system in accordance with DCC
17. Road improvement plans shall be approved by the Road Department prior to
construction.
FINDING: The roadways that will access these Facilities were addressed by the approvals of
the Phase A-1 tentative plan and Golf Course site plan and were found to comply with DCC 17.
The roads which serve the OLUs have been designed in accordance with DCC l7 and are shown
in this Site Plan Sheet Cl.0. The improvement plans for the road system will be approved by the
Road Department prior to construction. This condition will be met.
6 All easements of record or rights-of-ways shall be shown on any final plat. Plans
shall be approved by the Road Department prior to construction.
FINDING: This requirement applies during the County's review of the final plat. It is not a
requirement of site plan approval.
All new proposed road names must be reviewed and approved by the property
Address Coordinator prior to final plat approvat.
FINDING: This requirement applies during the County's review of the final plat. It is not a
requirement of this site plan approval.
Satisfied.
Satisfied.
10
7
8
9
Applicant shall provide, at the time of tentative platlsite plan review for each
individual phase of the resort developmento updated documentation for the state
water rights permit and an accounting of the full amount of mitigation, as required
under the water righto for that individual phase.
FINDING: In the tentative plan decision Hearing Officer Olsen determined "Condition 10
appears primarily to be an informational requirement requiring documentation of the state water
permit and an accounting of mitigation under the water right." On appeal LUBA concurued. See
Exhibit 6: LUBA TP A-l Decision, Pg.33-34. In a subsequent proceeding, for approval of the
Golf Course and Lakes Site Plan opponents argued that, among other things; the Applicant
needed to show it had an enforceable contract with Big Falls Ranch, and, that its water rights
permit had expired. Applicant argued the first was not needed. the second was false. that
Hearing Officer Olsen's interpretation was correct, and that Opponents were attempting to
amend the language of Condition 10, which was an irnpermissible collateral attack on the CMP.
Page 8 - Site Plan for Overnight Lodging at Thonfiurgh Resort
The applicant has a contract for the purchase of 3 I 5 acre-feet of water from Big Falls Ranch
which is a sufficient amount of water for all Phase A-authorized development. See Exhibit 5:
BFR Memo.
The Board of Commissioners agreed stating init2020 decision
"The BOCC qgrees this u,as resolved in the CMP with an intent consistent with
Hearing Officer Olsen's interpretation, that it is an "infonnatianal requirement".
The language of Condition l0 requires "updated documentation of the stote u)ctter
right permit. " It doesn't require that the documentation show any particular
slatus, .for example, that the perntit is.fi"ee of protest, or the extension is pending,
etc... It iust requires updated documentation which the Applicant provided. It
shows the Applicant has a water righrs permit, that the permit has not heen
cancelled, and that it is in good standing. Condition l0 does not require the
Applicant to provide an agreenxent, or unyform oJ'proof o.f on agreement or
contract for mitigcrtion water. It just recluires Applicant to provitle an accotmting
of the ntitigation v,ater for the uses in this site plan. Optrtonent atteTnpls to expanrl
the scope beyond that is a collateral attack on the (:MP."
Exltibit 1: BOCC Golf Course Decision, Exhihit A: pg. 7-9, 2l-23.
With this application, and in compliance with the BOCC's direction. the applicant has provicled
updated documentation similar to what it provided to the Board in the case noted above.
The updated documentation includes documentation showing Pinnacle Utilities, LLC owns water
rights permit # G-17036. See Exhit it 7: OWRD Pinnacle Transfer. Perrnit #G-17036 is a
quasi-municipal water right granted by Oregon Water Resources Department for the Resort
project See Exhibit 8: OWRD Water Rights Permit. On.Tune 24,2018, Pinnacle submitted an
application to amend its Incremental Development PIan ("IDP"). The amended IDp was
approved on July IA,2078. then furlher amended on September 1, 2020. See Exhibit 9:
Incremental Development Plan.
On April 2,2078 Pinnacle applied to extend the time to fully develop the water uses of permit G-n436. On June 5.2A18 OWRD issued a Proposed Final Order ("PFO") approving Pinnacle's
extension. See Exhibit l0: OWRD Proposed Final Order (PFO) Approving Extension. On
July 20,2018, Annunziata Gould filed a protest of OWRD's PFO approval and has requested a
contested hearing. This appeal is pending.a Opponents have argued Applicant's waterirights
permit is void, or expired. or that Applicant cannot pump water under its permit. Under Or.gon
law, permit G-17036 remains in place during the review of the extension unless and until
cancelled by OWRD. S'ee OAR 690-320-0020 (providing for OWRD to send a certified letter of
intent to cancel a permit, with 60 days to respond). OWRD has taken no action against the
permit and said it has no intentions to do so.
In prior development reviews, OWRD has advised Deschutes County, after the Gould appeal
a Due to the backlog at OWRD it could take more than a year for tlie protest to be heard.
Page 9 * Site Planfor Overnight Lodging at Thornburgh Resort
was filed, that Pinnacle's water rights permit is in good standing. that Pinnacle has done more
than is required at this time and that Applicant has provided rnitigation before pumping any
groundwater under the ar,rthority of the permit. See Exhibit 11: Jeremy Giffin emails dated
l2l24ll9 and8l24ll8. OWRD's Water Rights Information Query also states that the status of the
permit is "non-cancelled." See, Exhibit 12: OWRD Water Rights Query. LUBA also affirmed
Hearings Officer Olsen's detennination that this type of evidence establishes that Thornburgh
Resort has a valid water right. See Exhibit 6: TP A-1 LUBA Decision, p. 34. LUBA's decision
was affirmed without opinion by the Oregon Courl of Appeals on April 21,2A21. Gouldv.
Deschutes County,3l0 Or App 868, 484 P3d 1073 (Table)(2021).. On appeal of the Golf Course
site plan the BOCC agreed. S'ee Exhibit 1: page 8-9.
In March 2020 Pinrracle Utilities LLC subrnitted a Water Management Conservation Plan
(WMCP) to OWRD as required by Pennit G-17036. Comments were received and on
November 5,2020, Pinnacle submitted the final revised plan to OWRD. On November 24,
2024, OWRD issued a final order approving the WMCP and on January 23,2A21, Ms. Gould
liled a Petition for Judicial Review in the Marion County Circuit Court. OWRD withdrew the
final order approving the plan. On May 7,2027, OWRD issued an Order on Reconsideration
Approving the WMCP, finding, among other things, that Pinnacle's future water needs "are
reasonatrle and consistent with available land use plans and Pinnacle Utilities, LLC has
demonstrated a need to divert water under Permit G-17036 during the next 20 years." The
approval ordered the fbllowing: (a) the WMCP will remain in effect until May 7,2031; and (b)
that by November 7 ,203A Pinnacle shall submit an updated plan; and (c) by May 7 ,2026, it shall
submit a progress report. See Exhibit 13: Neuman letter w/Order on Reconsideration
Approving the WMCP.
In addition to the updated documentation, the Applicant provided an accounting of the amount of
mitigation needed for the development of the 24 cabins proposed under this site plan, which is
approxirnately 10.8 acre-feet of mitigation. Previous applications provided similar accounting of
the water needed. The tentative plan for phase A-1 required 50 acre-feet of mitigation water, the
site plan for the golf course and lake required 1 51 acre-feet of mitigation. The total mitigation
for this site plan and the prior applicationss is 2 1 I .8 acre-feet which is surnmari zed in Exhibit
14: Mitigation Dehit Table. This condition is met.
1 1. Satisfied
12.Commercialn cultural, entertainment or accessory uses provided as part of the
destination resort shall be contained within the development and shall not be
oriented to public roadways. Commercial, cultural and entertainment uses allowed
within the destinafion resort shall be incidental to the resort itself. As such these
ancillary uses shall be permitted only at a scale suited to serve visitors to the resort.
Compliance with this requirement shall also be included as a condition of FMP
approval.
FINDING: This condition is included in the FMP approval and was addressed in the decision
5 Prior applications include phase A-1 TP and the Golf Course & Lakes SP
Page I 0 - Site Plan.for Overnight Lodging at Thornburgh Re,su"t
approving the Phase A-1 tentative plan. The OLUs are not a "commercial, cultural or
entertainment use." They are defined, instead, by Title l8 as residential commercial uses. This
condition does not apply. Furthennore, even if the OLUs were considered commercial uses, they
are uses mandated by State law and the FMP and are not oriented to public roadways.
13. Satisfied.
t4 Applicant and its successors shall do the following to ensure that all open space used
to assure the 507' open space requirement of Section 18.113.060 (D)(1) is
maintained in perpetuity:
Satisfied.
Satisfied.
All deeds conveying all or any part of the subject property shall include the
following restriction: ***
FINDING: This requirement applies when the applicant conveys land in the resofi. It is not an
applicable approval criterion during review of the site plan.
D. All open space areas shall be clearly delineated and labeled on the Final Plat.
FINDING: This requirement applies during the County's review of each final plat. It does not
apply to the County's review of a site plan.
Any sutrstantial change to the open space approved under this section will
require a new land use permit.
FINDING: No substantial change is proposed to the open space by the OLU site plan.
15. Satisfied.
16 All temporary structures shall be limited to a maximum of 18 months on the resort
site.
FINDING: No temporary structures are proposed by the OLU site plan.
17. All development within the proposed resort shall meet all fire protection
requirements of the Redmond Fire Department. Fire protection requirements shall
include all minimum emergency roadway improvements.
FINDING: Emergency roadway improvements will be made according to the standards
required by the FMP prior to approval of the final plat, as required by Condition 4, above. They
will also be cornpleted prior to occupancy of the OLUs. All development will meet fire
protection requirements imposed by code or as a condition of approval based on the requirements
of the Redmond Fire Department.
A.
B.
C.
E.
Page I 1 - Site Planfor Overnight Lodging at Thornhurgh Resort
I 8. No development shall be allowed on slopes of 25o/o or more on the site.
FINDING: The applicant is not proposing development on slopes of 25Yo or more. As
explained during the review of the Phase A-1 tentative plan, this condition implements DCC
18.1 13.070(H) (2005). It says: "[n]o structure will be located on slopes exceeding 25 percent."
Given this context. the term "development," means the construction of buildings, on slopes
exceeding 25Yo. This site plan is not proposing construction of buildings in such locations. This
criterion is rnet.
19 Applicant shall implement a Wildfire/Natural Hazard Protection Plan for the resort
as identified in Ex. 15,B-29 of the CMP burden of proof statement. Prior to
approval of each subdivision and site plan, Applicant shall coordinate its evacuation
plans through that development phase with the Deschutes County Sheriffs Office
and the Redmond tr'ire Department. At the same time, Applicant shall also
coordinate its plans for the movement of evacuees over major transportation routes
with the Oregon State Police and the Oregon Department of Transportation.
FINDING: The applicant provided the infonnation as part of the filing of the Phase A-1
Tentative Plan and the Golf Course site plan which included plans fbr the evacuation of the lots
included in this site plan. At that time the applicant had informed the Redrnond Fire Department
and Deschutes County Sheriff of its filing of this application and has done so with the filing of
this application as well. Applicant previously coordinated with tl're Oregon State Police and
ODOT to develop its evacuation plans. As noted. the CMP/FMP includes a Wildfire & Natural
Hazard Protection Plan. The proposed site plan does not violate that plan or preclude
irnplementation of the plan. This condition is met.
20 The cumulative density of the development at the end of any phase shall not exceed
a maximum density of 0.72 dwelling units per acre (including residential dwelling
units and excluding visitor-oriented overnight lodging).
FINDING: This site plan is proposing visitor-oriented overnight lodging which does not count
toward the maximum density limit set fbr the Resoft. As such, this condition is not relevant to
review of this site plan.
21 Each phase of the development shall be constructed such that the number of
overnight lodging units meets the 150 overnight lodging unit and 2:1 ratio of
individually owned units to overnight lodging unit standards set out in DCC
18.113.060 (AXl) and 18.113.060 (DX2). Individually owned units shall be
considered visitor-oriented lodging if they are available for overnight rental use by
the general public for at least 45 weeks per calendar year through one or more
central reservation and check-in services. As required by ORS 197.445 (4)(b)(B), at
least 50 units of overnight lodging must be constructed in the first phase of
development, prior to the closure of sale of individual lots or units.
In addition to complying with the specific requirements of DCC 18.r13.70(u), 1-5,
Applicanto its successors and assignso shall at all times maintain (l) a registry of the
individually owned units subject to deed restriction under DCC 18.113.070 (UX2),
Page l2 - Site Plan.for Overnigltt Lodging at Thornburgh Resu.l
requiring they be available for overnight lodging purposes; (2) an office in a location
reasonably convenient to resort visitors as a reservation and check-in facitity at the
resortl and (3) a separate telephone reservation line and website in the name of
"Thornburgh Resort') o to be used by members of the public to make reservations.
As an alternative to or in addition to (3), Applicant may enter into an agreement
with a firm (booking agent) that specializes in the rental of time-sharing of resort
propertyo providing the Applicant will share the information in the registry
required by (1) and cooperate with the booking agent to solicit reservations for
available overnight lodging at the resort. If applicant contracts with a booking
agento Applicant and the booking agent shall cooperate to ensure compliance with
the requirements of DCC 18.113.070 (UXS), by filing a report on January I of each
year with the Deschutes County Planning Division.
FINDING: This site plan does not propose any individually owned, single family lots. This site
plan provides 80 OLUs. which allows the applicant to construct 50 OLU's prior to the sale of
individual lots or units. lndividually owned units will be available for overnight rental use by the
general public tluough one or more central reservation and check-in services as required by this
condition or as it may be amended in a subsequent land use application. Check-in and
reservation services will be provided in the Resort's Welcome Center. The Welcome Center will
be built in a location that is reasonably convenient to resort visitors, just off the entrance road to
the Resort from Cline Falls Road as shown as Facilities Lot 2, in the Phase A-1 Tentative Plan.
The location of the Welcome Center is shown on page 1.0 of this site plan as the single lot to the
south of the entrance road prior to the roundabout. See SP 1.0: Cover Sheet. A separate site
plan is being filed lbr the Welcome Center and other Resort facilities. The registry and
reservation line and website requirements apply once the OLUs have been built and are not
relevant approval criteria for this site plan. The requirements of DCC 18.1 13.070(U)(2005) are
addressed below.
22 The final covenants, conditions and restrictions adopted by the developer and
amendments thereto shall conform in all material respects to this decision and the
requirements of the DCC.
FINDING: This requirement applies to CC&Rs. The applicant submitted draft CC&Rs with its
CMP/FMP and will update them to a final version, substantially similar to the approved version
prior to submitlal of the first final plat. The CC&R's will comply with this condition.
23 No permission to use or improve Barr Road as access to the Resort is given or
implied by this decision.
FINDING: The site plan does not propose access to Barr Road
24. Satisfied.
25 Applicant shall submit a detailed erosion control plan with the first Tentative Plat
or Site Plan, whichever comes first.
Page I 3 - Site Plan.for Ot,ernight Lodging ot Thornburgh Re,sort
FINDING: The applicant has complied with this condition when it filed its Phase A-1 tentative
plan and again when it filed the Golf Course and Lakes site plan. While nothing fuither is
required to comply with this condition applicant has provided a drainage detail for the parking
road drainage. See SP 2.1: Cabin Site Plan.
26 Lot size, width (frontage), coverage, off-street parking and setbacks, including solar
setbacks, are permitted as described in Applicant's ExhibitSrB-24a in the Burden of
Proof document [for the CMPI subject to review during the subdivision approval
process to confirm that there will be safe vehicle access to each lot. Compliance with
the dimensional standards shall be confirmed during subdivision approval for each
development phase. All multi-family units, commercial structures, and other resort
facilities are exempted from meeting the solar setback standards.
FINDING: Condition26 applies during the review of a subdivision application. It cioes not
apply to site plan applications. The standards of CMP Exhibit 8,8-24a,Exhibit 15, Lot
Standards, are addressed in findings related to setback requirements of the DR overlay zone.
27 Road width shall be eonsistent with the requirements set forth in the Countyos
subdivision ordinanceo DCC Chapter 17.36.
FINDING: The proposed road widths comply with the requirements of DCC Chapter 17.36,
specifically those standards that pertain to private roads as show.n in Table A of the Deschutes
County Minimum Road Design Standards.
See conditions #38 and #39
Applicant shall abide at all times nith the MoU with ODOT, regarding required
improvements and contributions to improvements on ODOT administered
roadways.
FINDING: The applicant previously submitted an executed Cooperative Improvement
Agreement (CIA) with ODOT required by the MOU. A copy of this agreement is Exhibit 16 of
this application. Payments under the agreement are not due until after the county has approved
the first final plat. This site plan is not proposing a final plat. so this condition does not apply.
30. Satisfied.
31 All exterior lighting must comply with the Deschutes County Covered Outdoor
Lighting Ordinance per Section 15.10 of Title 15 of the DCC.
FINDING: All lighting will be shielded and directed downward and will otherwise comply with
the requirements of Section 15.10 of Title 15. That law applies to the resort's lighting regardless of
whether this application is conditioned to cornply or not.
28
29
Page I 4 - Sile Plan for Overnight Loclging at Thornburgh Re,sort
32.No permission to install a helicopter landing zone (helipad) at the Resort is given or
implied by this decision.
FINDING: The applicant is not seeking approval of a helicopter landing zone. This
requirement is not applicable to the review of the site plan.
-1 -l The Resort shall, in the first phaseo provide for the following:
A. At least 150 separate rentable units for visitor-oriented lodging.
B. Visitor-oriented eating establishments for at least 100 persons and meeting
rooms which provide eating for at least 100 persons.
C. The aggregate cost of developing the overnight lodging facilities and the
eating establishments and meeting rooms required in DCC I8.I13.060(AXl) and (2)
shall be at least $2,000,000 (in 1984 dollars);
D. At least $2'000'000 (in 1984 dollars) shall be spent on developed recreational
facilities,
E. The facilities and accommodations required by DCC 18.113.060 must be
physically provided or financially assured pursuant to DCC 18.113.110 prior to
closure of sales, rental or lease of any residential dwellings or lots.
FINDING: The applicant will meet the various requirements of this condition as discussed here
and in prior applications fbr the Phase A-l TP and the Golf Course Site Plan.
Condition 33A: Applicant will meet Condition 33A regarding the 150 units of lodging by
providing 150 separate rentable units for visitor lodging, or financially assuring them, per
Condition 33E, prior to the closure of sales, rental or lease of any residential buildings. This site
plan seeks approval of 24 golf cottages that will provide 80 OLU's. The golf cottages proposed in
this site plan qualify as the "visitor-oriented lodging" or OLUs approved by the CMP. As shown
by the CMP approval, the applicant planned to comply with condition 33A by constructing "50
golf cottages with lock out facilities to ensure 150 separate rentable units are available. . ." See
Exhibit 17: BOCC CMP Decision, pgs. 42-43 (quoted text on page 43).
Annunziata Gould appealed the CMP and argued at LUBA that the Resort's OLUs had not been
shown to "actually function as overnight lodging rather than normal residential housing that does
not qualify as overnight lodging." 54 Or LUBA at223. Gctuld v. Deschutes County,54 Or LUBA
205 (2007), rett'd drnd rem'd on other grounds,2l6 or App 150, 171 p3d 1017 (2a01. rn
response. LTIBA specifically approved the use of individually-owned cottages with lock-off units
as OLUs, including the 50 cottages proposed for Phase A. 54 Or LUBA at224. LUBA found that
the County's Resort code and CMP decision provided adequate assulances that the individually
owned properlies would function as the overnight lodging units required by State law and the
County's code.
During the Phase A-1 TP review, the applicant stated the 37 OLU lots in the Phase A-l tentative
plan would produce 111 OLUs. This site plan proposes 80 of those OLUs. Goulcl appealed the TP
Page I 5 - Site Plon for Overnight Lctclging ar Thotuburgh Re,sort
decision claiming the TP decision needed fuither details on the ownership, locations and design of
the OLU's to determine if they qualified as OLUs.
At LUBA the applicant responded "that the county's prior CMP/F'MP decision, and related appeals
resolved the OLU issue." LUBA agreed stating:
"The character of the oLUs" and whether they met the definition of oLU, was
decided in the CMP approval and not challenged on appeal from the CMP approval
in Gould CMP II. That issue is settled, unless and until the resorl seeks approval
from the county to rnodi$'the design6 of the required OLU's."
Gould v. Deschutes County,79 Or LUBA 561, 570 (2019).
LUBA also said
"[E]ven if we agreed with petitioner that the approved OLU design is inconsistent
with the decisions in the Caldera cases, an issue on which we express no opinion,
that conclusion would provide no basis for reversal or remand in this appeal
because that issue is not subject to collateral attack in subsequent application
carrying out the FMP."
79 Or LUBA at 570. See Exhibit 6, LUBA TP A-1 Decision, Pg. I l-15
LUBA was clear that the applicant is entitled to construct 50 golf cottages with lock-offs in order
to provide 150 separate, rentable OLUs in the initial phase.T This site plan which shows 24 golf
cottages with a total of 80 of the initial 150 OLUs. It does not propose a change to the approved
CMP plan or the FMP. As such, the issue of whether the golf cabins with lock-offs meet the
definition of OLU's was settled in the Thornburgh CMP and nothing fuither is needed.
Even if the lock-off issue hadn't been settled by approval of the CMP, the lock-off design
proposed here incorporates all the elements the BOCC found,s in their final approval of the
expansion of the Caldera Resorl, assure that lock-off units, function as a separate rentable unit
and OLU, including:
1. Each OLU has a separate outside entrance so guests can enter their unit separate from
other units.
2. Each unit has a separate unit number (e.g.:24-c) to identifu it separately fi'om other units.3. Each OLU has a separate, private bathroorn.
6 The design criterion was golf cottages with lock-offs providing separate rentable rurits.
'Gould appealed this issue to the Courl of Appeals who denied the claim, instead affirming LUBA
without an opinion.
8 The BOCC details relating to OLU's are from an appeal of the Caldera decision, attached as
Exhibit 18.
Page I 6 - Site Plan far Overnight Lodging d Tharnburgh Re,sort
4. Each OLU has an individual sleeping area, with a variety of sleeping options.5. Each OLU will have a television allowing guests to relax in their unit separate frorn other
guests.
6. Each OLU has a separate key, unique to that unit so that only a guest of the unit may
open the locked door to the unit and sharing will occur only if units in a building are
rented by a group or family that wishes to rent adjoining units.7. Parking spaces are provided for each OLU that are used in conrmon with other guests
adjacent to each structure.
8. Each OLU has a central location near the golf course and golf clubhouse.
The BOCC found:
"There is no"functional or practical difibrence betuteen /a,o adjoining OL\I's cmtl
huo adjoining hotel rooms Both units are seporate Ji"om adjoining units in the
sense that they are independent and include all of the rerluired elements of a
transient accommodation rtr a "sleeping unit" cts defined by rhe oregon
Structzn'al Specialty Code... ".
With these elements. tlie BOCC noted that there are no physical connections between the units or
other interaction between guests while they are in their own unit. Each OLU operates
independent of the other units in a manner exactly the same as adjoining hotel rooms that have alocking interior door. Given the fact that hotel rooms of this type quali$i as two separate
rentable units for overnight lodging under ORS 197.445(4), there isn't any basis to conclude that
individually owned lock-off units do not similarly qualify as "separate." See Exhibit l8: BOCC
Caldera Springs Decision, Pages 4-8.
The OLUs in this site plan meet the elements referenced by the BOCC above and will operate
independently of each other. Each OLU will have; i) a separate entrance, ii) a distinct unit
number, iii) a private bathroom, iv) its own sleeping area, v) a separate key unique to that OLU,
vi)" parking spaces to be used in common with guests of adjacent OLUs and: vii) its own
television.e
While not a requirement fbr Thornburgh, the BOCC also noted the Caldera OLU's were
centrally located and offered their guests numerous amenities and services typical to, and largely
required at destination resorts, exceeding those normally found in a hotel. See BOCC Caldera
Springs Decision. Page 6. Similarly, guests of the Thoruburgh OLUs will haye access to
amenities and services far greater than those typical of hoteis in the region. The 79 OLUs shown
in this site plan are OLUs that can apply towards the required 150 OLUs. The Phase A-1
tentative plan provides another 13 lots for OLUs and provides an area fbr ftrture development
that will also be developed with oLUs. This condition will be rnet.
34. Where construction disturtrs native vegetation in open space areas that are to be
e While the OLtIs in this site plan have televisions the CMP approval doesn't require such.
Some future Ol-tls may not include televisions as they may have differing themes, more focused
on nature, etc.
Page I I - Site Plan for Overnight Lodging at Thornburgh Resrn.t
retained in substantially natural condition, Applicant shall restore the native
vegetation. This requirement shall not apply to land that is improved for
recreational useso such as golf courseso hiking or nature trails or equestrian or
bicycle paths.
FINDING: The applicant does not anticipate that this site plan will disturb native vegetation in
open space areas that are to be retained in a substantially natural condition. But in the event that
such disturbance does occur, the Wildlife Mitigation Plan approved in the FMP prescribes the
protocols whereby such disturbance will be restored. These protocols will be followed.
35 The contract with the owners of units that will be used for overnight lodging by the
general public shall contain language to the following effect: o'[Unit Owner] shall
make the unit available to [Thornburgh Resort/booking agentl for overnight rental
use by the general public at least 45 weeks per calendar year through a central
reservation and check-in service.
FINDING: This requirement applies when the applicant sells the golf cottages to new owners. It
is not applicable to the review of this site plan.
36.Applicant shall coordinate with the Sheriff s Office and its designated
representative to address all public safety needs associated with the resort and the
development process.
FINDING: The applicant has informed the Sheriff that it is filing this site plan. The Sherifls
Office will receive notice from the county so that it may comment on the site plan. The
Sheriff s Office, also, has been involved in the design of the resort during development of the
CMP and FMP and was notified of the filing of the Phase A-1 Tentative plan approving the lots
in this site plan, and at the filing of the Golf Course and Lakes Site Plan, as well as with the
liling of this site plan.
37. Satisfied.
38 The applicant shall abide by the April2008 Wildlife Mitigation Plan, the August
2008 Supplemento and agreements with the BLM and ODFW for management of
off-site mitigation efforts. Consistent with the plan, the applicant shall submit an
annual report to the county detailing 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.
FINDING: This condition states an ongoing obligation of the resort. It is enforceable by virtue
of being a condition of the FMP and has already been found reasonably certain to succeed.
There are numerous elements that require further and ongoing approvals that ensure compliance
and allow for enforcement to proceed. LUBA ruled that compliance with Condition 38 is
assured by annual repofting rather than a review conducted each time the applicant seeks
Page I 8 - Site PIan for Overnight Lodging at Thornburgh Re.sort
development approvals. The Applicant's OLU site plan proposes no change to the Resort's
mitigation plans. Consequently, as noted by LUBA, the Applicant is not required to fill in any
details about the WMP during development review. See Exhibit 6: LUBA TP A-1 Decision,
Pages 34-38, and: Exhibit 1, BOCC Golf Course Decision, Pages 5,18-29. Nothing is required
at this time. This condition is met.
39.The applicant shall provide funding to complete a conservation project by the Three
Sisters lrrigation District to restore 106 acre-feet of instream water to mitigate
potential increase in stream temperatures in Whychus Creek. The restoration shall
occur as described in the applicant's submittals. The mitigation water shall be
placed in stream no later than the date that groundwater pumping to serve the
development commences (not testing). The applicant shall provide a copy of an
agreement with the irigation district detailing funding agreement prior to the
completion of Phase A.
FINDING: This condition is tied to pumping groundwater; not to platting. As a resglt, it does
not apply to the review of the site plan. Applicant will provide a copy of the agreement with
TSID prior to the commencement (not testing) of groundwater pumping, as requireci by this
condition.
TITLE 18, DESCHUTES COUNTY CODE
Chapter 18.113, Destination Resort - DR Zone
Section 18.113.040, Application Submission:
C. Site PIan Review. Each element or development phase of the destination resort must
receive additional approval through the required Site Plan review or subdivision
process. In addition to findings satisffing the Site Plan or subdivision criteriao
findings shall be made that the specific development proposal complieswith the
standards and criteria of this chapter and the FMP.
FINDING: During review of the golf course and lake site plar-r the parties and the administrative
approval set forlh different theories about what was required to demonstrate compliance with
"standards and criteria ofDCC 18.113 and the l'MP." Theadministrativeapproval treatedDCC
I 8. I 13.060 and 070 as applicable approval criteria. The BOCC disagreed and found that DCC
18.113.060, 18.113.07A and 18.113.090 apply only during the review of the Resort's master
plan; not during the review of development applications. DCC 18.113.050, also, does not
apply because it details the infbnnation that must be provided in the CMP application and is
not applicable thereafter.
TheApplicant also argued, andtheBOCC concurred,thatfindings of compliance withthe
conditions of approval of the FMP, but not the CMP, are required as part of any site plan or
tentative plan approval for the resort. The BOCIC found that several CMP conditions were
found by the FMP decision to have been "satisfied." These conditions are CMP Conditions
3, 8, 9, I 1 , 13, r4A, t4B, 15.24,30 and 37. Also, cMP condition 28 was replaced by
Page l9 - Site Plan,for Overnight Lodging at Thornhurgh Re,srn.t
Conditions 38 and 39 and, therefbre. is not a relevant approval criterion for review of a
development application. ^See Exhibit I, BOCC Golf Course Decision, Pages 4-6.
The applicant has addressed the conditions of approval of the FMP, above. This document
explains below how the site plans comply with the standards and criteria of Chapter 18.1 13 that
were a part of the CMP and FMP and. therefore, are relevant to the County's review of this
application.
Section 18.113.060, Standards forDestination Resorts:
The following requirements of DCC Chapter 18.113 apply to the development of the Resort
facilities proposed by this site plan:
G. Dimensional Standards:
The minimum lot areao lot coverage, frontage and yard requirements and
building heights otherwise applying to structures in underlying zones and the
provision of DCC f 8.116 relating to solar access shall not apply within a
destination resort. These standards shall be determined by the Planning
Director or Hearings Body at the time of the CMP. ***10
FINDING: The CMP application proposed that no minimum lot area, lot coverage, frontage or
yard requirements would apply to any Resort development. The BOCC approved the CMP as
proposed but added lot standards for residential lots agreed to by the applicant. These standards
are set out on Exhibit B-24a of the CMP. Exhibit 15. These standards apply only to "residential
lots" so do not apply to OLUs which are commercial residential uses similar to a motel room.
Nonetheless, to eff on the side of caution, the applicant has applied the siting standards
applicable to Type G residential lots. The Type G lots require setbacks of 20' front yard, 15'
rear yard and 5' side yard. Lot coverage is 80%. All OLU buildings comply with these
standards.
2. Exterior setbacks.
a. Except as otherwise specitied herein, all development (including
structures, site-obscuring fences of over three-feet in height and changes to
thenaturaltopography oftheland) shall be setback from exterior property
lines as follows:i. Three hundred fiffy feet for commercial development including all
associated parking areas,ii. Two hundred fifty feet for multi-family development and visitor-
oriented accommodations (except forsingle-family residences) including
all associated parking areas,
iii. One hundred fifty feet for above-grade development other than that
listed in DCC 18.113.060(G)(2)(a)(i) and (ii);
l0 The relevant code requirements are those in effect when the CMP was approved and those
requirements were made apart of the approved master plan.
Page 20 - Sile Plan.for Overniglzt Lodging at Thornburgh Re,srx"t
I
U
iv. One hundred feet for roads,
v. Fifty feet for golf coursesl and,
vi. Fifty feet for jogging trails and bike paths where they abut private
developed lots and no setback for where they abut public roads and
public lands.
b. Notwithstanding DCC 18113.060(GX2XaXiii)o above-grade development
other than that listed in DCC f 8.113.060(G)(2)(a)(i) and (ii) shall be
setback 250 feet in circumstances where state highways coincided with
exterior property lines.
c. The setbacks of DCC 18.113.060 shall not apply to entry roadways and
signs.
FINDING: All proposed developrnent and roadways comply with the above-listed setbacks as
shown by the applicant's site plan. The sr"rbject property does not adjoin a state highway.
DCC 18.113.070, Approval Criteria (2005 Ordinance/CMP)
A mechanism to ensure that individually-owned units counting toward the
overnight lodging total remain available for rent for at least 45 weeks per calendar
year through a central reservation and check-in service. Such a mechanism shall
include all of the following:
1. Designation on the plat of which individually-owned units are to be
considered to be overnight lodging as used in DCC 18.113;
2. Deed restrictions limiting use of such identified premises to overnight lodging
total purposes under DCC 18.113 for at least 45 weeks each yearl
3. Inclusion in the CC&Rs of an irrevocable provision enforceable try the
County limiting use of such identified units to overnight lodging purposes
under DCC 18.113 for at least 45 weeks each year;
4. Inclusion of language in any rental contract befween the owner of the unit
and any central reservation and check-in service requiring that such units be
made available as overnight lodging facilities under DCC f 8.113 for at least
45 weeks each yearl and
5. A requirement that each such unit be registered and a report filed on each
such unit yearly by the owner or central booking agent on January I with the
Planning Division as to the following information:
L. Who the owner or owners have been over the last year;
b. How many nights out of the year the unit was available for rent
through the central resen'ation and check-in service; and
c. How many nights out of the year the unif was rented out as an
overnight lodging facilify under DCC 18.113.
FINDING: Item 1 wili be met by the applicant when filing the final plat for Phase A-1. The
deed restrictions, CC&R and rental conlracts are a part of the approved FMP. The reporting and
registration requirements of subsection (5) apply after the units are built and rented as OLUs.
Page 2l - Site Plan for Ovemight Lodging at Thornburgh Re,sort
The applicant will also cornply with the requirements of this code section either as written or as
modified by Central Land's application to rnodifu the 45-week requirement to align with State
law and current County code.
DCC 18.113.110. Provision of Streets, Utilities, Developed Recreational Facilities and
Visitor-Oriented Accommodations.
A.The Planning Director or Hearings Body shall find that all streets, utilities,
developed recreational facilities and visitor-oriented accommodations required by
the FMP are physically provided or are guaranteed through surety bonding or
substantial financial assurances approved by the County prior to closure of sale of
individual lots or units.
B.Financial assurances or bonding to assure completion of streets and utilities,
developed recreational facilities and visitor-oriented accommodations in the FMP
shall be required pursuant to the security requirements for site plan review and
subdivision review established try the Deschutes County Code.
FINDING: This code section makes it clear that required Resort facilities may be constructed or
assured. The only exception is that the applicant is required by FMP Condition 21 to construct
50 OLUs prior to selling Resort lots.
Chapter I 8.1 I 6, Supplementary Provisions
Section 18.116.020. Clear Vision Areas.
In all zones' a clear vision area shall be maintained on the corners of all property at
the intersection of two streets or a street and a railroad. A clear vision area shall
contain no planting, fence, wall, structure, or temporary or permanent obstruction
exceeding three and one-half feet in height, measured from the top of the curb, or
where no curb exists, from the established street centerline gradeo except that trees
exceeding this height may be located in this area provided all branches and foliage
are removed to a height of eight feet above the grade.
B.A clear vision area shall consist of a triangular area on the corner of a lot at the
intersection of two streets or a street and a railroad. Two sides of the triangle are
sections of the lot lines adjoining the street or railroad measured from the corner to
a distance specified in DCC 18.116.020(BXl) and (2).
FINDING: The clear vision area rules apply to street intersections. "Streets" are defined by
DCC 18.04.030 as "the entire width between the right-of-way lines of every public way for
vehicular and pedestrian traffic." The private roads proposed by the site plan are not public
\^'ays. Nonetheless" the private roads will comply with the clear vision requirements of this code
section to assure safety.
Section 18.116.030. Off-Street Parking and Loading.
A.
Page 22 - Site Plan for Overnight Lodging at Thornburgh Re.sorl
B.
A.Compliance. No building or other permit shall be issued until plans and evidence
are presented to show how the off-street parking and loading requirements are to be
met and that the property is and will be available for exclusive use as off-street
parking and loading. **
FINDING: This criterion will be met as detailed below
Off-Street Loading. Every use for which a buitding is erected or structurally altered
to the extent of increasing the floor area to equal minimum floor areas required to
provide loading space which will require the receipt or distribution of materials or
merchandise by truck or similar vehicle shall provide off-street loading space on the
basis of minimum requirements as follows:
2. Restaurantso Office Buildings, hotels, motels, recreation or entertainment
facilitieso and any similar use which has a gross floor area of 30,000 square feet
or more shall provide off-street truck loading**.
FINDING: No building in this site plan is over 30,000 square feet so no off-street loading
spaces are required. This criterion is met.
Off-Street Parking. Off-street parking spaces shall be provided and maintained as
set forth in DCC 18.116.030 for all uses in all zoning districts. Such off-street
parking spaces shall be provided at the time a new building is hereafter erected or
enlarged or the use of a building existing on the effective date of DCC Title l8 is
changed.
D. Number of Spaces Required.
FINDING: DCC I 8.1 16.030(D) does not include a category for OLUs. Subsection (DX2)
includes hotels and motels and sets different requirements for each. In previous OLU
applications for the Caldera and Tetherow destination resofts, a requirement of one parking space
per OLU was imposed. We believe the same requirement should be applied here.
E. General Provisions. Off-Street Parking.
I More Than One Use on One or More Parcels. In the event several uses occupy a
single structure or parcel of land, the total requirement for off-street parking shall
be the sum of requirements of the several uses computed separately.
FINDING: Multiple overnight lodging units are proposed in a single building. The total
requirement for off-street parking is the sum of the parking required for each of the OLUs.
)Joint Use of Facilities. The olT-street parking requirements of two or more uses,
structures or parcels of land may be satisfied by the same parking or loading space
used jointly to the extent that it can be shown by the owners or operators of the useso
C
Page 23 - Site Plan for Ovemight Loclging at Thornburgh Resort
structures or parcels that their operations and parking needs do not overlap at any
point of time. lf the uses, structures or parcels are under separate ownershipo the
right to joint use of the parking space must be evidence by a deed, lease, contract or
other appropriate written document to establish the ioint use.
FINDING: The OLU parking will be used by guests when they are utilizing other Resort
facilities which will lessen the need for parking elsewhere in the Resort for OLU guest use.
3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be
located on the sAme lot with the dwelling. Other required parking spaces shall be
located on the same parcel or another parcel not farther than 500 feet from the
building or use they are intended to serveo measured in a straight line from the
building in a or industrial zone. Such parking shall be located in a safe and
functional manner as determined during site plan approval. The burden of proving
the existence of such off-premise parking arrangements rests upon the applicant.
FINDING: Parking has been provided at the rate of one parking space per unit for each OLU on
the lot where it is located.
4. Use of Parking Facilities. Required parking space shall be available for the parking
of operable passenger automotriles of residentso customers, patrons and employees
only and shall not be used for the storage of vehicles or materials or for the parking
of trucks used in conducting the business or used in conducting the business or use.
FINDING: This is a requirement that applies to parking after it is constructed. It is not a
relevant approval criterion.
5.Parking, Front Yard. Required parking and loading spaces for multi-family
dwellings or commercial and industrial uses shall not be located in a required front
yard, except in the Sunriver UUC Business Park (BP) District, Airport Development
(AD) Zone, and properties fronting Spring River Road in the Spring River Rural
CommercialZone, but such space may be located within a required side or rear
yard.
FINDING: This application is not proposing parking spaces for multi-family dwellings or
commercial or industrial uses. Overnight lodging units are defined by DCC 18.04.030 as a
"cotntnercial residential Llse" and are a required element of a destination resort use. Furthennore,
if OLUs are considered commercial uses, this code section does not apply because no front yard
is required for commercial lots and buildings. S'ee, CMP ExhibitB-24a,Exhibit 15.
on-street Parking Credit. Nofn ithstanding DCc 18.116.030(GX2), within
commercial zones in the La Pine Planning Area and the Terrebonne and Tumalo
unincorporated communitieso ** *
FINDING: This part of tlie code does not, by its express teilts, apply to the subject properly
6.
Page 24 - Site Plan for Overnight Lodging ctt Thornburgh Re.sort
F
I
Development and Maintenance Standards lbr Off-Street Parking Areas. Every
parcel of land hereafter used as a public or private parking areao including
commercial parking lotso shall be developed as follows:
Except for parking to serve residential uses, an off-street parking area for more
than five vehicles shall be effectively screened by a sight obscuring fence n'hen
adjacent to residential useso unless effectively screened or buffered by landscaping
or structures.
FINDING: None of the parking areas proposed by this site plan provide more than five parking
spaces.
2.Any lighting used to illuminate off-street parking areas shall be so arranged that it
will not project light rays directly upon any adjoining property in a residential zone.
FINDING: Ihis site plan does not include property in residential zone nor does it adjoin
property in a residential zone. That said" all lighting that may be used in this site plan to
illuminate off street parking will be low and directed downward so that it does not project light
onto any adjoining property. This criterion is met.
3.Groups of more than two parking spaces shall be located and designed to prevent
the need to back vehicles into a street or right of way other than an alley.
FINDING: The applicant's site plan provides parking areas that are designed to prevent the
need to back vehicles into a street or right of way other than an alley. The parking spaces for
Lots 193 through 201 back onto an alley that is also an access aisle for the parking on these lots.
Areas used for standing and maneuvering of vehicles shall be paved surfaces
adequately maintained for all weather use and so drained as to contain any flow of
water on the site. An exception may be made to the paving requirements by the
Planning Director or Hearings Body upon finding that:
JJJ
b. The subject use is located outside of an unincorporated community and the
proposed surfacing will be maintained in a manner which will not create dust
problems for neighboring properties; or
FINDING: All the areas in this site are anticipated to be paved surfaces that will be n-raintained
for all weather use and drained to contain the flow of water on site as noted on the Site Plan.
Page C2.1.
5. Access aisles shall be of sufficient width for all vehicular turning and maneuvering.
FINDING: The term "accass aisle" is not delined by the code. The code does, however. define
the ter:m o'access" as follows:
4
Page 25 - Site Plan.for A,ernight Lodging at Thornburgh Re,sort
6.
"Access" me{trts lhe right lo cros,s betv,een ytublic antl private trtroperly ollol,t,itxg
Stedestt"iuns cmd ,-ehicles lo enter and leave trtr(rpeyly.
T'he code also defines the term "drivewav'" as ftillows:
"Drivewu);" Me{t{ts a v}ay createcl lo prot,ide t,elticttlar acces.s.fi'ottt u Tnblic or privste
rosd lo a garage or ptu'king area.
In other land use applications, the County has applied access aisle requirements to private
parking areas that provide access to a private developed as a road as well as to public property;
perhaps reasoning that the access aisle is a "driveway" that provides vehicular access fiom a
private road to a parking area. In any case? the term "access" modifies the term "aisles" to
indicate that they are located within a parking area and extend to a public or private road. The
driveways to the parking lots for Lots 201 though 216 containaccess aisles. The alley that
provides access to Lots 193 through 200 also may be viewed as an access aisle for the parking
areas on these lots.
All access aisles described above are of sufficient width for vehicular turning and maneuvering.
A1l are at least 24' wide. This is the width required by DCC 18.1 16.030(G) to provide sufficient
width for all vehicular turning and maneuvering.
Service drives to off-street parking areas shall be designed and constructed to
facilitate the flow of traffic, provide maximum safefy of traffic access and egress and
maximum safety of pedestrians and vehicular traffic on the site. The number of
service drives shall be limited to the minimum that will accommodate and serve the
traffic anticipated. Service drives shall be clearly and permanently marked and
defined through the use of railso fences, walls or other barriers or markers. Service
drives to drive in establishments shall be designed to avoid backing movements or
other maneuvering within a street other than an alley.
FINDING: The code does not define the term "service drive." Neither does the dictionary
relied on by Oregon Courts - Wehster's Third New International Dictioncu'y Unabridged. This
dictionary does, however, deflne the term'oservice road" and that definition is instructive. It is a
"frontage road." A frontage road is a facility that provides direct access to a number of
properties. It is logical to assume that a service drive is a driveway that provides access to
ntultiple properties. This interpretation is consistent with the BOCC's finding that an easement
road that crossed a neighboring properly and provided access to a parking lot and its access aisles
on the subject property was a "service road." File 247-18-000545-CU|-546-CU/-81 1-MA. If
this definition is applied to this application, the access aisles in the parking areas along the rear
of Lots 193 through2}} and the driveway that connects the parking area with the private road to
the south also meet the delinition of a "servica road."
The applicant will cornply with the "marking requirement" by marking service drives with the
landscaping proposed by the site plan. The landscaping will be continuously maintained. The
applicant is not proposing a drive-in establishment so the final sentence of tliis code section is
not a relevant appror;al criterion for this site plan.
Page 26 - Sile Pltrn.for (h,ernight Lodging at Thornburgh Re,sort
7 Service drives shall have a minimum vision clearance area formed by the
intersection of the driveway centerline, the street right of way line and a straight
line joining said lines through points 30 feet from their intersection.
FINDING: The site plan does not propose a "Street." That the term is separately defined by
DCC 18.04.030 to apply only to roads built within a public right-of'-way. As a result, rhe clear
vision area requirement does not apply. Nonetheless, the applicant has designed its plan to meet
this clear vision requirement. Given the lac.k of clarity about the rneaning of the term "service
drive," the applicant has designed the driveways and service drives on all lots to provide 30 feet
clear vision areas that comply with this code section.
8.Parking spaces along the outer boundaries of a parking area shall be contained by a
curb or bumper rail placed to prevent a motor vehicle from extending over an
adjacent property line or a street right of way.
FINDING: All the parking has been designed such that it will not extend over an adjacent
property line by providing a landscaped buffbr of at least 5' in width between the edge of the
parking space and an adjoining property. Lots 193-200 provide head-in parking so will not
extend over an adjacent properly line or street right-of-way.
Off-Street Parking Lot Design. All off-street parking lots shall be designed subject
to Counfy standards for stalls and aisles as set forth in the follorving drawings and
table:
(sEE TABLE I AT END OF CHAPTER 13.116)
l. For one row of stalls use "C" + ttD?r as minimum bay width.
2. Public alley width may be included as part of dimension "Do" but all parking
stalls must be on private property, off the public right of way.
3. For estimating available parking area, use 300-325 square feet per vehicle for
stall, aisle and access areas.
4. For large parking lots exceeding 20 stalls, alternate rows may be designed for
compact cars provided that the compact stalls do not exceed 30 percent of the total
required stalls. A compact stall shall be eight feet in width and 17 feet in length with
appropriate aisle width.
FINDING: All parking spaces are ninety-degree spaces tirat are 10'x 20'. Access aisles are24-
feet wide.
Section 18.116.031. Bicycle Parking. New development and any construction, renovation or
alteration of an existing use requiring a site plan review under DCC Title 18 for which
planning approval is applied for after the effective date of Ordinance 93-005 shall comply
with the provisions of DCC 18.1f 6.031.
A.Number and Type of Bicycle Parking Spaces Requirecl.l. General Minimum Standard.
G
Page 27 - Site Plan for Overnight Lodging ut Thornburgh Re,su.t
^. AII uses that require off-street motor vehicle parking shall, except as
specifically noted, provide one bicycle parking space for every five required
motor vehicle parking spaces.
FINDING: One bicycle parking space is required for each OLU lot as no lot has more
than five parking spaces.
b. Except as specifically set forth herein, all such parking facilities shall include
at least two sheltered parking spaces oro where more than 10 bicycle spaces
are required, at least 50 percent of the bicycle parking spaces shall be
sheltered.
FINDING: This code section requires the applicant to double bicycle parking for the
OLU lots to two per lot and to shelter both spaces. Each OLU lot and building, therefore,
provides at least two sheltered parking spaces fbr bicycles, often in multiple locations per
building. See SPpp.BP I,3,5,7,&9.
c. When the proposed use is located outside of an unincorporated community, a
destination resort, and a rural commercialzone, exceptions to the bicycle
parking standards may be authorized by the Planning Director or Hearings
Body if the applicant demonstrates one or more of the following.
FINDING: Section 1(c) is not applicable because this project is a destination resort.
2. Special Minimum Standards.
FINDING: Criterion (2) is not applicable
3. Trade Off with Motor Vehicle Parking Spaces.
a, One motor vehicle parking space may be deleted from the required number
of spaces in exchange for providing required bicycle parking.
i. Any deleted motor vehicle space beyond the one allowed above shall
be replaced with at least one bicycle spaces.
ii. If such additional parking is to be located in the area of the deleted
automobile parking space, it must meet all other bicycle parking
sfandards.
b. The Hearings Body or Planning Director may authorize additional bicycle
parking in exchange for required motor vehicle parking in areas of
demonstrated, anticipated, or desired high bicycle use.
4. Calculating number of bicycle spaces.
a. Fractional spaces shall be rounded up to the next whole space.
b. For facilities with multiple uses (such as a commercial center) bicycle-
parking requirements shall be calculated by using the total number of motor
vehicle spaces required for the entire development.
Page 28 - Site Plan for Overnight Lodging crt Thornhurgh Re,sort
FINDING: Criterion 3 allows applicant to delete motor vehicle spaces and replace them with
bicycle parking. This site plan is not deleting any vehicle spaces. Fractional spaces were
rounded up.
B.Bicycle Parking Design.
l. GeneralDescription.
^. Sheltered Parking. Sheltered parking may be provided within a bicycle
storage room' bicycle lockero or racks inside a building; in tricycle Iockers or
racks in an accessory parking structurel underneath an awning, eave, or
other overhangl or by other facilify as determined by the Hearings Body or
Planning Director that protects the bicycle from direct exposure to the
elements.
b. Unsheltered parking may be provided by bicycle racks.2. Location.
a. Required bicycle parking that is located outdoors shall be located on-site
within 50 feet of main entrances and not farther from the entrance than the
closest motor vehicle parking space.
a. Bicycle parking shall be located in areas of greatest use and
convenience to bicyclist.b' Such bicycle parking shall have direct access to both the public right
of way and to the main entrance of the principal use.c. Bicycle parking shall not impede or create ahazard to pedestrians.d. Parking areas shall be located so as not to conflict with clear vision
areas as prescribed in DCC f8.116.020.b. Bicycle parking facilities shall be separated from motor vehicle parking and
drive areas by a barrier or sufficient distance to prevent damage to the
parked tricycle.
c. Where bicycle parking facilities are not directly visible and obvious from the
public right(s) of way, entry and directional signs shall be provided to direct
bicyclists for the public right of way to the bicycle parking facility. Directions
to sheltered facilities inside a structure may be signed, or supplied by the
employer, as appropriate.
3. DimensionalStandards,
a. Each bicycle parking space shall be at least two by six feet with a vertical
clearance of seven feet.
b. An access aisle of at least five feet wide shall be provided and maintained
beside or between each row of bicycle parking.
c. Each required bicycle parking space shall be accessible without moving
another bicycle.
4. Surface. The surface of an outdoor parking facility shall be surfaced in the same
manner as the motor vehicle parking area or with a minimum of one-inch
thickness of aggregate material. This surface witl be maintained in a smooth,
durable, and well-drained condition.
FINDING: Bicycle palking is located near entrances. with the covered spaces being on racks
mounted to the bLrildings under building overhangs or eaves. Bicycle parking will not irnpede
Page 29 - Site Plan for Overnight Lodging at Thornburgh Re,sort
pedestrian access and is separated from vehicle parking. The parking will be visible from, and
have direct access, to the main entrance as well as paths and roadways. The parking will be at
least2' by 6' with at least 7' of vertical clearance and designed to meet the dimensional
standards of this code section. The surfaces of the outdoor parking will be either asphalt.
aggregate or paver materials that match adjacent paths. These criteria will be met.
5. Security,
a. Bicycle parking facilities shall offer security in the form of either a lockable
enclosure in which the bicycle can be stored or a stationary object (i.e., a
"rack") upon which the bicycle can be locked. Structures that require a user-
supplied lock shall accommodate both cables and U-shaped locks and shall
permit the frame and both wheels to be secured (removing the front wheel
may be necessary). AII bicycle racks, lockers, or other facilities shall be
permanently anchored to the surface of the ground or to a structure.b. Lighting shall be provided in a bicycle parking area so that all facilities are
thoroughly illuminated and visible from adjacent sidewalks or motor vehicle
parking.
FINDING: Each building has covered areas, both porches and overhangs that provide for
covered bicycle parkir,g. Certain of these areas will have lockable racks permanently affixed to
the building. Lighting will be provided along pathways into the covered areas so the facilities
will be visible. See notes on SP LC 1-9. This criterion is met.
6. Other means that provide the above level of bicycle parking may be approved by
the Hearings Body or the Planning Director.
18.116.310. Traffic Impact Studies
FINDING: The applicant cornplied with the requirement of the code to provide a traffic irnpact
study when it obtained approval of the Resofi's CMP based on a traffic impact study fbr the
entire Resort. Issues addressed by this code section, with the exception of sight distance and
clear vision areas, have been met by the CMP TIS. The CMP and FMP decisions assure that the
impacts of development will be mitigated. A new study is not required. The applicant has also
shown, by a trip debit letter fi'om Chris Clemow, P.E. (See: Exhibit l9), that with the approval
of this application that Resort development authorized to date will not exceed the volume of
traffic projected by the TIS.
The following part of- DCC 1 8.1 16.31 0 sets the relevant approval standard for sight distance for
driveways and intersections in the resort:
H. Operation and Safety Standards
The minimum sight distance for driveways and intersections is defined in
AASHTO's ..GEOMETRIC DESIGN OF HIGHWAYS AND STREETS"
and the AASHTO "Design Guidelines for Very-Low Volume Local Roads
(less than 400 ADT).'
3.
Page 30 * Sile PIan.for (h,ernigltt Lodging at Thornburgh Re,sort
FINDING: Transportation engineer Chris Clemow, P.E. has determined that the sight distance
requirements of AASHTO are met by the OLU access aisle driveways. See Ex. 20, Clemow
lettero Site Distance Analysis.
Chapter 18.124, Site Plan Review
18.124.060, Approval Criteria: The approval of a Site Plan shall be basedon the following
criteria:
A.The proposed development shall relate harmoniously to the natural environment
and existing development, minimizing visual impacts and preserving natural
features including views and topographical features.
FINDING: In the administrative decision that approved the golf course site plan, staff quoted
the Board's findings in Father's House,files247-18-000061-CTJ,247-18-000062-SP,247-18-
400624-A, and247-18-000643-A, to interpret the meaning of this criterion. The Board said:
The Board qgrees that DCC 18.124.060(A) is suhjective and, at times, difficult to
apply as fhe Hearings O/ficer observed. Horuever, as the Board interprets the
prot'ision, DCC 18.124.06AU) does not require a particularly onerous exercise. It
requires an applicant to show thal its proposed site plan relates "harnloniously" to
the natural environment and existing development. Unlike the conditional use
standards oJ'DCC lB.l28.015(B), this standard does not indicate harmony achieved
u,ith "surrounding properties. " However, the Board understands that the standard
implies that the proposed development shall relute hcrrmoniously on and o.ff the
subject property and generally speaking, in the vicinity, by "minimizing visual
impacls and preserving natural feattn'es including viev,s and topographical Jbatures. "
The code does not de/ine what it means to "relate harmoniously. " The Hecu"ings
Olficer reported that the online Oxford Living Dictionary de.fines "harmoniously" to
nxean arranging something " in a u,W that.forms a pleasing or consistent whole. "
Bothparties in this case, provided various interpretation,s of the term "harntonious."
The Board is not adopting one interpt'etation o.f the lerm oyer another as each
contribules equally to this evaluation. The Board concurs u,itlt the Hecu"ings Olficer
that there is no "particularly useful cctse law defining or applying this term. " In
ctddition, the Bocu"d agrees, thcrt the Hearings Officer is correct that a site plan shottld
be approved in light of this mectning of "harmoniolts," so long as the proposed site
plan does not create "moye disharmony than other uses alloyved b1t right or
conditionally in the MUA-10 zone." In this regard, the Board.finds that this standard
presumes the use is approved and evaluates only v,helher the ,site plan.for the use
" rel ate s harntoniously. "
Specifically, the Board interprets DCC 18.121.060(A) to me6n thot an applicant ntust
tlemonstrate that the site plcrn hcts cu'ranged the dettelopment in a wcry that evaluotes
the natural environmenl and existing development in the area and in the process ha.s
Page 3 I * Site Plan for Overnight Lodging ar Thornburgh Re,sort
minimized visual impacts and reasonchbt preserved natural -features including vieyts
and topographic.features. Minimizing visttal impact, as with thi,s case, may include
introduced landscaping. design la,vout, and specirtc design elemenrs such as siding
and rooJing color and material. In doing so, this enables the County dec'ision maker
to.fincl that the site plan's impacls crea{e no more disharmony than other uses
allowed by right or conditionally in the MUA zone.
The Board agrees, in part, with the Hearings OLficer that this stand(ird is considered
dffirently when compcu'ed to the term "compatibility" and its ussociated standarel of
DCC 18.128.015(B). The chief dffirences between the tu,o standards is that the DCC
18.128.015(B) compatibility standard evaluates the compatibility o.f the proposeduse
on existing and projected uses of suruounding propertiespnd does so in light of
specific.factors that are not reproduced in DCC 18.124.060(4). The DCC
18.124.A60@) "harmonious" standard evaluates v,hetlter a proposed site plan
"rel,ates hcu'moniously to existing development and the naturol environment"
considering v,hether the site plan shows that the applicant has reasonably mitigated
its impacts and reasonably preserved views. The Board ob,serve,s that not every use
that requires site plan approval also requires a conditional use trtermiL However, the
Boardfinds thcrt il is possihle that a permitted or approved use is arranged so poorly
on a site. that a proposed site plan must be denied under this standard. Thcrt is not the
case here.
Stcrff'understands the BCC .findings, cited ahove, make cleqr that the use itsel-f is not
the subject ofreview under this criterion. Rather, this criterion only evaluate,y **hether
the site planJbr the use "relates harntoniously. " Staffreads Father's House to recluire cr
demonstrution, "...that the site plsn has aryanged the development in a wav that
evaluates the natural environment and existins development in the ures and in the
process has minimized visuul impacts and reasonablv preserved noturnl features
includinsviews swM""
As the Bozu'd noted in Fathers House, the "harmonious" standard asks whether development has
evaluated the natural environment and existing development in the area and minimized visual
impacts and reasonably preserved natural features including views and topographic features.
Minimizing visual impact, may include landscaping, design layout, and design elements such as
exterior colors and materials.
The site plan shows that the OLUs will be located in high-quality, attractive buildings and
landscaping that will complement the natural environment and thereby minimize the visual
impacts of the development. When the CMP was developed, the entire Resort was designed to
be harmonious with the environment. the natural features. and the surrounding areas. The
project documents reflect the applicant's cornrnitment to retain that natural look and feel of the
propefiy, to preserve and enhance the land returning it to an old growth Juniper forest. The
property has roughly 700' of elevation change and the views are a primary focus of the project.
The applicant went to great lengths during its planning to minimize the projects visual impacts,
and to protect the views, both from within the property, and from outside the project looking
upon it. The subrnifted site plans continue this approach.
Page 32 - Site Plan.for Overnight Lodging at Thornburgh Re,sort
The natural environment is a typical high-desefi dry landscape with native sagebrush. bitterbrush
and Juniper tree vegetation. The property has a number of old Juniper trees which are, to the
extent practicable, being retained. The site is relatively level and the Board of Conrmissioners
has determined in its decision appr:oving the CMP "... that while there are resources worth
preserving on the property, they do not rise to the level ol"important natural features' that must
be protected to the exclusion of developnlent." See Exhibit 17: BOCC CMP Decision, Page
12. Proposed developrnent will not require the removal of notable topographical features.
There is no existing developtnent nearby with which to relate because adjoining properties
outside the Resort are public open space lands and the OLUs will be located a significant
distance from them. The site plan is designed to take advantage of views and does not destroy
notable topographical features. Existing large trees are retained where feasible.
The site plan proposes buildings that fit within the area and with the character of the resort.
They will use natural materials, colors and landscaping to blend into the natural environment.
The site layout is consistent with the approved resort design concepts. Further, there is no
existing development near this site plan. It is surrounded by undeveloped resofi land at this time.
For the reasons mentioned above, the site plan is in harmony with the environment, is located so
that it has evaluated the natural envirorunent, blends into it, is located to minimize visual
impacts, preserves natural features (if any), and has highlighted the views.
This site plan meets this criterion
The landscape and existing topography shall be preserved to the greatest extent
possibleo considering development constraints and suitability ofthelandscape and
topography. Preservedtreesandshrubs shall be protected.
FINDING: This criterion is divided into two parts, or two sentences. During the appeal
proceedings for the golf course and lakes site plan in front of the Board, the applicant provided
substantial details how this issue was resolved by the far broader standards ofthe CMP and
FMP,includingtheWMP/FWMP,theNatural Characteristics Report, the Wildlife and
Habitat Reporl, the Open Space Management Plan. The applicant also showed that extensive
planning and analysis was completed to comply with the CMP/FMP that assures that Resort
development will meet this standard and that areas of natural and improved open space will
be provided and protected. During those prior proceedings the Board fbund:
"Applicant has already met the related requirements ctf the CMP in 18.1 I3.050
und 070 v,hich are broader than those o.f 18.I 24.060(8). The CMP materials
consistently st(fte a concerted elJbrt will be made to minimize the impacts to
natural resources. which is carried into this current aptrtlication, to protect the
I und,s cape and topogr aplty. "
See Exhibit l: BOCC Golf Course Approval, Pg. 1 1 . The OLU site plans also letain native
landscape and topography to the greatest extent possible - a fact evident from a review ofthe site
plan. Areas of native landscaping are provided on each lot. The size of parking areas has been
Page 33 - Sile Plan for Overnight Loclging at Thornburgh Re,srsrt
B.
C
held to a minimum to limit impacts on vegetation and topography. The lot coverage on each
OLU lot is modest.
The second sentence, or part ofthe criterion, "preserved trees and shrubs shall be protected" is
addressed here and on the site plan. The WMP desired a return to an old growth forest requiring
the applicant to remove the smaller juniper trees, allowing native grasses to come back. As a
result, we will remove many of the smaller trees from the site plan area. The removal of the
smaller trees from the site will. unfortunately, result in removal of sagebrush or shrubs as well.
Juniper trees will also be removed from within, and just outside of the building site to provide a
firebreak in accordance with the resorl's Wildfire and Natural Hazards plan and the "Firewise"
protocols. Wherever possible, the larger, old growth trees will be retained. The trees to be
retained are shown on the landscape plans. See SP LC l-9.
The landscape plans show the areas to be landscap ed (See SP LC 1-9), the various plant species
to be used and retained. See SP LC 10. This criterion will be rnet.
The Site PIan shall be designed to provide a safe environmento while offering
appropriate opportunities for privacy and transition from public to private spaces.
FINDING: The site plan provides a safe environment. The different buildings offer both public
areas and private spaces with appropriate transitions between them. The OLU lots are relatively
level and free of naturalhazards. The parking areas are small and do not create unsafe
conditions. While the applicant acknowledges that a safe environment includes fire safety, the
issues related to fire safety have been resolved in the CMP/FMP, and the resulting conditions of
approval 4,17,19, and 24 will be rnet to achieve a safe environment. The property has been
annexed into the Redmond Fire District boundaries. satisS,ing condition 24. Condition 4 does
not require any action until the issuance of a final plat or building permit. Condition 17 requires
actions be taken, namely the provision of access and fire water prior to the delivery of
combustible materials for structures. Cor-rditton24 was satisfied during the approval of the
tentative plan for Phase A-1. Nothing flrither is required for fire safety at this time.
This criterion is met.
When appropriateo the Site Plan shall provide for the special needs of handicapped
persons, such as ramps forwheelchairs and Braille signs.
FINDING: ADA compliance is assured by the County's Building Division when construction
drawings are filed fbr building permit review. The site plan provides for the needs of
handicapped persons by providing ADA parking spots on up to 5 of the units. See SP 4.0: ADA
Parking Option. The OLUs will meet ADA standards including accessible rooms, paths and
ramps and all other requirements at the time construction drawings are submitted for review by
the County Building Official. This criterion will be met. The ADA Parking Plan shows five
potential parking areas (lots 195,197,215,201, and202) that include ADA parking spaces and
loading areas. The applicant retains the option to remove the ADA unloading space and to
convert the ADA space to a standard parking space if such parking is not required at the time
these units are constructed. The landscape plans, pages t.C l-10 show regular parking spaces
D
Page 34 - Site Plnn far Oyernight Lodging at Thornburgh Re,sort
but the transitional landscape will be replaced with the ADA parking in any lot used as ADAwith ramps and walkways being adiusted accordingly. Any OLU used for ADA will be built tocomply with the ADA standards.
E' The location and number of points of access to the site, interior circulation patterns,separations befween pedestrians and moving and parked vehicles, and thearrangement of parking areas in relation to buildings and structures shall beharmonious with proposed and neighboring buildings and structures.
FINDING: The approxirnate location and number of points of access to the site wereestablished by the Tentative Plan for Phase A- 1. The OLU site plan aclds an alley to provide
access to parking located at the rear of Lots 193-201 . The parking areas are located where theremoval of large trees is minirnized, and areasonable separation ii provided between the OLUunits and the parking areas. This type of rocation is .,harmonious.,'
In all cases' the layout of access, parking, and internal circulation provides harmony with; thedevelopment, buildings, and the environment as defined by the Board in Fathers House. Therethe Board felt a site plan should be approved in light of this meaning of ..ha'nonious,,, so long asthe proposed site plan does not create "more disharmony" than othei gses allowed (layoutsallowed). In other words, unless the parking creates more dishannony than other purkirg wouldthe criterion for this site plan should be met. The proposed parking is harmonious" so thJcriterion is met.
F. Surface drainage systems shall be designed to prevent adverse impacts toneighboring properties, streets and surface or subsurface water quatity.
FINDING: Applicant submitted an erosion control plan as part of the initial tentative plan (seeTP4.l-4,7) and also with the golf course site plan in-accordance with Condition 25. Furlherdetails on the surface drainage specific to this site plan are included on pages Sp C2.1, whichensures there is no adverse impacts to neighboring properties, streets, r.116.., or subsurfacewater qr"rality. This criterion is met.
G' Areas, structures and facilities forstorage, machinery and equipment, services (mailorefuse, utility wires, and the like),loading and parking andsimilaraccessoryareas
andstructuresshallbedesigned,locatedancl buffered or screened to minimizeadverse impacts on the site and neighboring properties.
FINDING: All utilities are underground. Parking areas are designed and located to minimizethe impacts to the site and neighboring properties- Trash enclosuies a1e screene d. See Sp LC l-9. This criterion is met.
H. All above-ground utilify installations shall be located to minimize adverse visual
impacts on the site and neighboring properties.
FINDING: All utilities proposed for this site plan are proposed to be located uudergrou'd.
Page 35 - Site Plan for Ovemight Loclging at Thornburgh Re,srn"l
L Specific criteria are outlined for each zone and shall be a required part of the site
plan (e.g.o lot setbacks, etc.).
FINDING: Deschutes County's destination resofi code imposes exterior setback criteria for
resort properties. None of the proposed buildings and structures will be located in an exterior
setback area. The required setbacks are:
^. 350' for commercial development and parking areas;
b. 250' for multi-family developrnent and visitororiented accommodations (except for
single-family residences) including associated parking areas;
c. 150' for above-grade development other than commercial, multi-family and visitor-
oriented accommodations:d. 100' fbr roads;
e. 50' for golfcourses;
f. 50' for jogging trails and bike paths where they abut private developed lot and zero
setback where abutting public roads and public lands. and;
g. 250' setback from state highways.
This criterion is met.
J. All exterior lighting shall be shielded so that direct light does not project off-site.
FINDING: All exterior lighting will be shielded and will project downward so that it will not
proiect off site. This criterion will be met.
K. Transportation access to the site shall be adequate for the use.
1. Where applicable, issues including, but not limited to, sight distanceo turn and
acceleration/deceleration lanes, right-of-wayo roadway surfacing and wideningo and
bicycle and pedestrian connections, shall be identified.
2. Mitigation for transportation-related impacts shall be required.
3. Mitigation shall meet applicable Counfy standards in DCC 18.1163f0, applicable
Oregon Department of Transportation (ODOT) mobilify and access standards, and
applicable American Association of State Highway and Transportation Officials
(AASHTO) standards.
FINDING: The applicant is proposing to use the road system established by approval of the
CMP/FMP and refined by the recently approved tentative plan and golf course site plans for
access. Mitigation for traffic impacts is provided by compliance with the transportation system
mitigation requirements of the CMP/FMP and traffic impact agreements with ODOT. The
applicant is enclosing an updated trip debit letter (See: Exhibit 19) from Professional Engineer
Chris Clemow, that demonstrates the vehicle trips attributed to this site plan do not exceed the
trips lbrecast by the Resort's approved transportation impact analysis. This criterion will be met
Chapter 18.124.070 Required Minimum Standards:
A. Private or shared outdoor recreation in residential developments.
Page 36 - Site Plan for Overnight Lodging at Thornhurgh Re,su't
FINDING: This site plan is not a residential development. It is a site plan for development in
an approved destination resofi. As such this criterion is not applicable.
B.Required Landscaped Areas.
1. The following landscape requirements are established for multi-family,
commercial and industrial developments, subject to site plan approval:
a. A minimum of 15 percent of the lot area shall be landscaped.
b. All areas subject to the final site plan and not otherwise improved shall
be landscaped.
FINDING: This application is not located within a rnulti-family, commercial or industrial
development so these criteria are not applicable. Instead, it is a destination resort development
that has been required to provide natural and developed open space areas on 50% ofthe resort
property. As discussed herein, and in the CMP/FMP approvals undeveloped areas will remain
largely native, although trees and underbrush in undeveloped areas will be thirured and removed.
2. In addition to the requirement of DCC 18.124.A70@)(l)(a), the following
landscape requirements shall apply to parking and loading areas:
^. A parking or loading area shall be required to be improved with defined
landscaped areas totaling no less than 25 square feet per parking space.b. In addition to the landscaping required by DCC 18.124.070(B)(2)(a), a
parking or loading area shall be separated from any lof line adjacent to a
roadway by a landscaped strip at least l0 feet in width, and from any
other lot line by a landscaped strip at least five feet in width.
c. A landscaped strip separating a parking or loading area from a street
shall contain:
1) Trees spaced as appropriate to the species, not to exceed 35 feet apart
on the average.
2) Low shrubs not to reach a height greater than three feetzero inches
spaced no more than eight feet apart on the average.
3) Vegetative ground cover.
d. Landscaping in a parking or loading area shall be located in defined
landscaped areas which are uniformly distributed throughout the
parking or Ioading area.
e. The landscaping in a parking area shall have a width of not less than five
feet.
f. Provision shall be made for watering planting areas where such care is
required.
g. Required landscaping shall be continuously maintained and kept alive
and attractive.
h. Maximum height of tree species shall be considered when planting under
overhead utilify lines.
FINDING: As was noted in the CMP the applicant is r:etaining substantial areas of the native
vegetation and using new landscape to accentuate and augment the native beauty. As is shown in
Page 37 - Site Plan.for Overnight Lodging ttt Thoruhurgh Resort
the landscape plans new planting largely occurs next to the buildings themselves quickly
transitioning to the native vegetation. Where the native vegetation has been disturbed the bulk of
those areas will be re-vegetated in an effort to return substantially to the native state. The parking
areas have a minimum 5' strip between them and any adjoining property line. This meets the
requirements of #2 (b-g) as shown on SP LC l-9. The landscaping requirements by their terms
apply only to parking areas; not to access aisles which cross property lines and connect to parking
areas on each lot. There are no overhead utility lines on this site plan so (h) above is not
applicable. This criterion will be met.
C.Nonmotorized Access.
1. Bicycle Parking. The development shall provide the number and type of bicycle
parking facilities as required in DCC 18.116.031 and 18.116.035. The location
and design of bicycle parking facilities shall be indicated on the site plan.
FINDING: DCC 18.1i6.031 has been addressed above. DCC 18.116.035 is not applicable as
no proposed building is a commercial or public building with at least25 people. As shown
above this criterion is met.
2. Pedestrian Access and Circulation:
a. lnternal pedestrian circulations shall be provided in new commercialo
office and multi-family residential developments through the clustering of
buildings, construction of hard surface pedestrian walkways, and similar
techniques.
FINDING: This code section does not apply because OLUs are commercial residential resort
uses; not "commercial, office and multi-family residential developments. Additionally, this code
section does not apply because there is only one building per lot.
b. Pedestrian walkways shall connect building entrances to one another and
from building entrances to public streets and existing or planned transit
facilities. On-site wallcwnys shall connect with walkwayso sidewalks,
bikeways, and other pedestrian or bicycle connections on adjacent
properties planned or used for commercialn multi-family, putrlic, or park
use.
FINDING: This code section does not apply because each lot is proposed to be developed with
a single building and there are no walkways, sidewalks or bikeway on adjacent properties
planned for commercial, multi-farnily, public or park use. There are no transit facilities that are
located anywhere near the subject property. This criterion does not apply.
Page 38 - Site Plan for Overnight Lodging at Thornhurgh Resrn'l
LIST OF EXHIBITS:
SITE PLAN FOR OLU'S
Exhibit
l. BOCC Golf Course Decision (Appeal) dExhibit A
2. Lot of Record
3. FMP Master Development Plan A-3
4. TP A-1 HO Olsen Decision Excerpt (pp 20-23)
5. Big Falls-Pinnacle Memo - April 28,2021
6. TP A-1 LUBA Decision Excerpts (pp 1i -15,33-34)
7. OWRD Permit Transfer to Pinnacle
8. OWRD Water Rights Permit
9. OWRD Water Rights IDP
10. OWRD Proposed Final Order - Extension
1i. OWRD Jeremy Giffin Emails
12. OWRD Water Rights Permit Query
13. Neuman Letter 05119121, RE: OWRD Order on Reconsideration WMCP
14. Mitigation Debit Chart
15. Lot Standards (CMP ExB-24a)
16. ODOT CIA
17. BOCC CMP Decision Excerpts (pp 12,42-43)
18. BOCC Caldera Appeal Decision Excerpts (pp 4-8)
19. Clemow Letter re: Trio Debit Letter
20. Clemow Letter re: Site Distance Analysis
REVIEWED
fDnn,
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS
File Number:247-19-000881-SP, 247-20-000279-A, and 247-20-
000282-A.
Appellant:Annunziata Gould and Central Oregon Landwatch
Applicant/Owner:Central Land and Cattle Company, LLC
Proposal:Affirm Approval of Site Plan
Subject Property:Tax Lots 7700,7800, and 7900, Map 15-12-00
Planning Staff:Cynthia Schmidt, Planner: Staff Decision
Will Groves, Senior Planner, Appeal
DECTSTON
The Board of County Commissioners (BOCC) adopts and incorporates by reference the basic
findings, code interpretations, findings of fact and conclusions of law set forth in the April 1,
2020 Administrative Decision except for the findings r:elating to the DCC Sections identified
below. To the extent there are conflicts between any of the findings identified above and the
flndings below, the findings and conclusions below shall control.
I. BACKGROUND FINDINGS.
A. Application Review Process. On December 1 1, 2019 Kameron Delashmutt and Central
Land and Cattle Company, LLC (Applicant) submitted a request for a Site Plan Review (SP)
for the Thornburgh Phase A golf course which included lakes that were approved by the
Conceptual Master Plan (CMP, File No. CU-05-20) and Final Master Plan (FMP, File No., M-
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-'19-OOO881-SP Thornburgh Golf Course page 1 of 17
0c-?020-579
07-2, MA-08-6) for the destination resort. The Planning Division issued an administrative
approval without a public hearing on April 1, 2O2O determining the Applicant met the
applicable criteria. Annunziata Gould and Central Oregon Landwatch (COLW) (collectively,
Appellants) appealed the approval to a hearings officer. The Applicant asked the BOCC,
instead of the hearings officer, to hear the appeal, which it agreed to do.
The Appellants and others in opposition presented evidence and testimony in opposition
tothe application. OnJune 17,2020, the BOCC held a hearingto receive evidence and
testimony from the parties. The Applicant submitted evidence and testimony in support
of the application. At that time the Appellants requested that the record remain open for
additional evidence, which the BOCC granted. The BOCC set a deadline of July 1,2O2Ofor
the submittal of additional evidence (the Open Record Period). The BOCC further set a
deadline of July 8,2002 for the rebuttal of evidence submitted during the Open Record
Period, and a date of July 15, 2O2O for the submittal of the Applicant's Final Legal
Argument.
On July 27, 2020, after the record closed, Gould's attorney, Karl Anuta, submitted a
response to a record objection contained in the Applicant's Final Legal Argument. Anuta
argued that a previous submittal during the rebuttal period was limited to evidence or
testimony submitted by the Applicant on July 1,2020. The BOCC opened the record
(Order #2020-045) to accept both Anuta's July 27 letter and a response provide by the
Applicant on July 29.
B. Prior Land Use Reviews. The Thornburgh Destination Resort has a lengthy and complex
history that began in 2005, and includes decisions by Hearings Officers, the BOCC, the
Land Use Board of Appeals (LUBA), the Oregon Court of Appeals, and the Oregon
Supreme Court. Pages 3-5 of the Administrative Decision provides details of the various
actions and approvals prior to this application.
C. Golf Course and Lake Site Plan. This decision approves an 18-hole golf course and
irrigation lakes. This decision does not approve development of an additional 9-hole golf
course or other golf facilities, nor does it approve recreational use of the lake(s) at this
time. No bonding or other financial assurances were proposed.
D. Lot of Record. The subject property is a part of the greater Thornburgh Resort property
that was determined to be a Lot of Record pursuant to DCC 18.04.030 in the BOCC's
decision approving the Thornburgh CMP. lt, therefore, is eligible for development. COLW
in this appeal argued that Tax Lot770l was unlawfully created and, therefore, Tax Lot
7700 is not a lot of record. As noted, that issue was resolved in the CMP decision, wherein
the County found that Tax Lot77O1 was a lot of record with a part of Tax Lot 7700.
II. KEY ISSUES CONSIDERED UNDER APPEAL
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course Page2 of 17
A. Does the County haveJurisdiction to decide this issue?
The County approved a tentative plan for Phase A-1 of the Thornburgh resort. Gould
appealed that approval to LUBA. LUBA remanded the decision to Deschutes County. Gould
flled an appeal of LUBAs decision to the Oregon Coun of Appeals, but that appeal was
dismissed due to a lack ofjurisdiction. Gould appealed that dismissalto the oregon Supreme
Court. The Oregon Supreme Court accepted review and has not yet issued a decision. ln the
meantime, the Applicant initiated a review on remand and the County again approved the
tentative plan. Gould also appealed that tentative plan decision to LUBA, but that second
LUBA matter is currently being held in abeyance untilthe Oregon Supreme Court addresses
the merits of the Court of Appeals' dismissal of Gould's aforementioned appeal.
Gould and COLW argue the County does not have jurisdiction of the current application
because appeals of the Phase A-1 tentative plan are pending. Without citing applicable legal
authority, Gould's argued that the subject site plan application depends entirely on the
outcome of the Phase A-1 tentative plan appeals, and jurisdiction remains with those
appellate bodies until there are final decisions on both aforementioned appeals
Gould further argued that the decision in this case is dependent on the survival of the
configuration and specific details of the Phase A-1 tentative plan and site plan approved by
the cases on appeal. The BoCC disagrees. The Phase A-1 tentative plan decision on appeal
does not approve a site plan. lnstead, it authorizes the division of lots from the greater
Thornburgh property. The relevant approval criteria for the subject golf course and irrigation
lakes do not require that the property be divided.
The subject site plan and the Phase A-1 tentative plan application are separate development
applications for different development activities authorized to occur in phase A of the
Thornburgh Resort. Each application was reviewed, as described below, as the third step in
a 3 step process, and neither is dependent on the other. Each application was independently
reviewed for its compliance with the FMP and relevant provisions of the County code. One
application was reviewed under tentative plan criteria and the other application was
reviewed under site plan criteria. The fact that each application was required to establish
that it complied with the FMP did not cause the subject site plan to hinge upon the outcome
of the Phase A-1 tentative plan appeals as argued by Gould.
DCC Chapter 18.113 calls for a 3 Step approval process whereas the 3'd steps, that of the
Phase A-1 tentative plan or subject site plan, were both dependent on Steps 1 (the CMp) and
2 (the FMP). DCC Chapter 18.113 does not call for each element of the 3'd steps to be
dependent on other 3'd step elements. The Phase A-1 tentative plan under appeal was
reviewed under criteria for tentative plans and the project status in 2018 whereas the subject
site plan application was reviewed under the different site plan criteria and the project status
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-OOO881-SP Thornburgh Golf Course page 3 of 17
in 2020. Furthermore, both the CMP (Step 1) and FMP (Step 2) approved the golf course and
lakes subject to site plan review. The CMP required the construction of a golf course in the
initial development, which this site plan is consistent with. The BOCC does not find any legal
support in the code or statutes for the Appellants' arguments that the subject site plan is
dependent on the Phase A-1 Tentative plan. The BOCC finds the subject site plan is not
dependent on the Phase A-1 tentative plan, and the BOCC therefore has the jurisdiction to
decide this matter.
B. CollateralAttacks.
The BOCC finds that many issues raised by Appellants in these proceedings were either; i)
raised and resolved against the opponents in previous stages of the resort's multi-stage
approvals process, or; ii) could have been raised during the review of the CMP or FMP but
were not. Where this is the case, the issue is settled and not grounds.for denial of a Stage 3
review application. Under the principle of collateral attack, a land use decision intended to
serve as a final determination of a land use issue such as the Thornburgh CMP and FMP may
not be challenged in a later proceeding that implements or relies on the earlier, final
decision. LUBA has explained the rule as follows:
'As a general principle, issues that were conclusively resolved in a final discretionary land
use decision, or that could have been but were not raised and resolved in that earlier
proceeding, cannot be raised to challenge a subsequent application for permits necessary
to carry out the earlier final decision;' Safewoy, lnc. v. City of North Bend, 47 Or LUBA 489, 500
(2004) (citatio ns o m itted).
The Thornburgh FMP is the master plan that establishes the plan to be followed when site
plan and partition applications are filed with the County and is based on issues decided by
the cMP.
According to LUBA:
"All requirements of the CMP approval are now requirements of the [C]ounty's FMP approval.
The FMP approval has effectively incorporated and displaced the CMP approval."
Centrol Land and Cattle Compony, LLC v. Deschutes County, 74 Or LIJBA 325, 328 n I (2016)
The Applicant, therefore, was not required to again demonstrate compliance with the CMP
or FMP approval criteria during the review of the subject golf course site plan. The criteria
set forth in DCC 18.1 13.050 and 18.1 13.070 are CMP approval criteria met by the CMP that
are not applicable to the subject site plan review. The informational requirements of DCC
18.1 13.050 apply to a CMP application only. The criteria set forth in DCC 1 8.1 13.090 are FMP
approval criteria met by the FMP that are not applicable to the subject site plan review (See
Relevant Approval Criteria and FMP Conditions, below). The point of the DCC's three-stage
review process is to require a master plan of the resort community that then guides the
Board of County Commissioners Decision, Document No. 2020-579
File No. 247:19-000881-SP Thornburgh Golf Course Page 4 of 17
review of development actions. The DCC does not require a resort to re-litigate master plan
issues every time it seeks development approvals to implement the plans.
LUBA's application of the no collateral attack rule in Gould v. Deschutes County,_ Or LUBA_
(LUBA No. 201 8-140, June 21 ,2019) is instructive. ln that case, LUBA held that challenges to
issues settled by the CMP and FMP are impermissible collateral attacks on the Thornburgh
CMP and FMP. LUBA found that challenges to Resort plans for Overnight Lodging Units (OLU)
and the wildlife mitigation plans are not permissible. Specifically, LUBA found that the
removal of dams on Deep Canyon Creek and the provision of mitigation water is required by
the FMP and is not relevant to the review of the tentative plan because the tentative plan did
not alter the mitigation plan that is a part of the FMP. The BOCC finds that the same
reasoning applies in this case concerning the subject golf course site plan. The Applicant's
golf course site plan does not propose to modiff the CMP or FMP. Rather, it proposes
development that is authorized and required by those plans. The Applicant is not proposing
any change to the mitigation plan so it is not relevant in this site plan review. See td (slip op
at 37-38).
LUBA also determined and the BOCC agrees that compliance with the wildlife plan would be
determined by annual reporting as set out in FMP Condition 38 - not during review of the
tentative plan - where the development application does not alter any mitigation
requirement of the FMP mitigation plan. The same reasoning applies to the golf course site
plan review. See ld (slip op at 37).
ln the record, the Applicant identified arguments that are impermissible collateral attacks
and the specific issues barred by the rule. The BOCC summarizes collateral attack arguments
and makes findings in Exhibit A, which is incorporated in its entirety into this decision.
Exhibit A also provides reasons the barred issues do not provide a basis for denial on the
merits of the claim raised by opponents. The BOCC adopts ExhibitA as findings that support
approvalof the site plan application.
C. Relevant Approval Criteria and FMP Conditions Misstated in Appealed Decision
DCC 18.1 13.040(C) states:
c.Slte Plan Review. Eoch element or development phose of the destlnotion
resort must recelve odditionol approval through the required site plon review
(DCC 18.124) or subdivlsion process (DCC Title 17). ln oddition to flindings
sotisfyingthe slte plon or subdivision criteria, findings shall be mode thotthe
specilic development proposal complies with the stondords ond criterfu of
DCC 18.113 qnd the FMP.
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File No. 247-19-OOO88'l-SP Thornburgh Golf Course Page5of17
The parties and the administrative approval set fonh different theories about what is
required to demonstrate compliance with "standards and criteria of DCC 18.113 and the
FMP." The administrative approval includes DCC 18.1 13.060 and 070 as applicable approval
criteria. The Appellants also regard these sections as approval criteria for the current site
plan review.
The Applicant argued that DCC 18.113.060 and 070 are only applicable criteria for the CMP
and FMP and DCC 18.113.090 is applicable criteria only for the FMP. The BOCC specifically
interprets those aforementioned DCC provisions, and concurs with the Applicant that these
sections are not written to apply during site plan review and do not apply during site plan
review.
The Applicant argues, and the BOCC concurs, that findings of compliance with the conditions
of approval of the FMP, but not the CMP, are required as part of any site plan or tentative
plan approval for the resort. Those findings are made in the administrative approval, as
modified and supplemented herein. The BOCC finds that several of the CMP conditions were
found to be "satisfied" in the FMP decision. These are CMP Conditions 3, 8, 9, 11,13,14A,
148, 15,24,30 and 37. Also, Condition 28 was replaced by Conditions 38 and 39 and should
not have been listed as a relevant approval criterion for review of the golf course application.
Although not directly argued by the parties, the BOCC interprets the applicable DCC
provisions and finds that many of the Appellants' arguments related more directly to DCC
18.113.080, which governs ongoing compliance with, and substantial changes to, and
approved CMP.
18.113.080. Procedure for Modificatlon of o Conceptual Moster Plon.
Any substontlal change, os determined by the Plonning Dlrector, proposed to on
opproved CMP sholl be revlewed ln the some monner os the originol CMP. An
insubstqntial chonge moy be opproved bythe Plonning Dlrector. Substontiol chonge
to on opproved CMP, os used in DCC 18.113.080, meons on olterotion in the type,
scqle, locotion, phostng or other chorocteristic ol the proposed development such
thot lindlngs of foct on which the originol opprovol was bosed would be moteriolly
offected.
To the extent the Appellants in essence argued that that the subject site plan contemplates
a "substantial change" to the approved CMP, the BOCC finds that that Appellants failed to
demonstrate that any such assumed "substantial changes" altered the "$tpe, scale, location,
phasing, or other characteristics of the proposed developmenf' thereby materially affecting
the original findings of fact. Although further not identified as such, any assumed
"insubstantial changes" were in essence previously approved by the Planning Director
consistent with DCC 18.1 13.080 through the approval of the administrative decision.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course Page6of17
D. Compliance with FMP Condition 10?
FMP Condition #10 requires:
Applicant sholl provide, ot the time of tentotlve plotlsite plon opprovol revlew for
eoch indlvlduol phase ol the resort development, updoted documentotion lor the
state woter right permit ond on qccounting of the full omount of mitigotlon, os
required under the woter right,Ior that lndlvlduol phose.
As understood by the County, the Appellants claim the decision erred in finding compliance
with FMP Condition #10 because; i) the Applicant has not provided the updated
documentation and accounting required, ii) the Applicant has not secured mitigation water
from Big Falls Ranch with an enforceable contract, iii) any rights the Applicant has to water
and water rights are not secured and available for mitigation, iv) the Applicanfs water rights
permit has expired and the extension is not final so there is insufficient water for this
application, and v) the amount of water doesn't include amounts needed for evaporation,
construction, or maintenance.
The BOCC disagrees with Appellants assertions and finds that the Applicant has provided the
updated documentation and accounting required by FMP Condition 10. What is now FMP
Condition #10 was first included in, and carried over from the CMP approved in 2006. By
including the condition as part of the CMP, the BOCC at that time overturned a finding by a
County Hearings Officer stating that "until the applicant demonstrates that it has enough
mitigation credits to mitigate for 942 acre-feet of water (the estimated amount of consumptive
use per OWRD), it is unlikely that the application will be approved." (Hearings Officer's CMP
decision, page 25).
Thornburgh appealed that Hearing Officer's decision to the BOCC arguing that mitigation water
only needed to be provided when the water rights permit dictated, not priorto development of
the entire resort. On appeal, COID manager SteveJohnson argued that:
'The decision rendered by Heorings Officer Anne Corcoron Briggs last month implies thot
the Resort must bring oll of the woter to the toble with the opplication. This decision, if lefr
unmodified, will set a precedent thot will artificiolly escolote the competition for woter
rights in the bosin, and consequently drive the price up, and drive some farmers out. Her
onolysis of Woter Availobility on page 25 expressly conditions opproval of the applicotion
on hoving the credits in hond now. Some of this woter will not be needed for mony yeors,
ond this policy, if followed, will be o woste of woter, againstthe beneficiol use doctrine that
is the pillor of Oregon's water low policy."
The previous BOCC agreed with Thornburgh and COID, and required Thornburgh through
Condition 10 to provide mitigation water when required by the OWRD water right permit.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course PageT of 't7
The previous BOCC further found that prior to mitigation water being required by the OWRD
water right permit, Thornburgh is only required to show it is not precluded from obtaining
mitigation water as a matter of law. The previous BOCC further found that Thornburgh had
met that standard and had exceeded it by showing it was feasible at that time to obtain
sufficient mitigation water when required by OWRD. (See BOCC CMp Decision, pgs. 70-
72).The current Bocc agrees with and considers those previous findings as binding onthe subject application.
Although on appeal, the BOCC also agrees with a separate County Hearings Office/s
findings concerning Condition 10 as it related to the Phase A-1 tentative plan application:
"Condition 10 oppeors primorily to be on informational requirement requiring
documentation ofthe stote woter permit ond on occounting of mitigotion under the woter
right." (Hearings Officer"s 2018 Tp Decision, page 33)
. That second Hearings Officer found that evidence in that record demonstrated that theresort was in good standing with OWRD, and the Applicant satisfied Condition 10 byproviding an estimate of the amount of mitigation water needed for phase A-1 .
When considering the Phase A-1 tentative plan on remand in 2019, the current BOCC also
interpreted the FWMP to require the Applicant to mitigate the impacts of phase A-1 before
pumping groundwater to serve Phase A-1. Consistent with the BOCC's decision in phase A-
1 tentative plan matter, and consistent with what the Coun!y's understanding of what will
be required by the OWRD, the BOCC finds that the subject application is contingent only on
an assessment of the water needs associated with approval of the subject site plan. The
BOcc finds that the information provided in the record in this matter and detailed below
relevant to the golf course and lakes sufficiently satisfies condition 10.
To support the subject application, the Applicant provided updated documentation that
shows Pinnacle Utilities, LLC (Pinnacle) owns water rights permit #G-17036.See Applicant,s
Exhibit H-2. This is a permit for a quasi-municipal use of water granted by oWRD for this
project. See Applicant's Exhibit H. On June 24,2018, Pinnacle submitted an application to
amend its lncremental Development plan, which was approved on July, 10, zojg. See
Applicant's Exhibit H-3. on April2, 2018, Pinnacle applied to extend the time to fully develop
the water uses of permit G-17036. On June 5,2018, OWRD issued a proposed Final Order
(PFO) approving Pinnacle's extension. See Applicant,s Exhibit l.
on July 20, 2018, Gould filed a protest of owRD's PFo approval and has requested a
contested hearing. That appeal is pending. As understood by the County, permit G-1703G
remains in place during the review of the extension unless and until cancelled by OWRD.
See OAR 590-320-0020 (requires OWRD to send a certified letter of intent to cancel a permit,
with 60 days to respond). There is no evidence in the subject record demonstrating that
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File No. 247-19-OOO881-SP Thornburgh Golf Course page g of 17
OWRD has taken action against permit G-17036, nor does anything in the subject record
demonstrate that OWRD intends to do so. OWRD, instead, advised the County after the
Gould appeal was filed that Pinnacle's water rights permit is in good standing. See
Applicant's Exhibit S. OWRD's Water Rights lnformation Query states that the status of the
permit is "non-cancelled." See Applicant's Exhibit H-4. Last, again acknowledging that the
matter is on appeal, the BOCC nevertheless notes that our findings in this matter are
consistent LUBA s recent treatment of the issue agreeing with the County Hearings Officer,s
findings concerning the Applicant's phase A-1 tentative plan application.
The Applicant filed a "Mitigation Debit Table," with the County that shows the amount of
mitiSation water needed for the subject site plan and the previously approved phase A-1
tentative plan. See Applicant's Exhibit AA. That table also shows the mitigation required at
build-out of the Resort. Approximately 84-acre feet of water rights or 151-acre feet of
mitigation water is needed for the development proposed by the subject site plan and for
uses allowed outright by the phase A-1 tentative plan.
E. Compliance with FMP Condition i7?
FMP Condition #17 requires:
All development withln the proposed resoft sholl meet ott ftre protection
requirements of the Redmond Fire Deportment. Flre protectlon requirements sholl
include oll mlnimum emergency roodwoy lmprovements.
As understood by the County, the Appellants argue that heayy excavation, grading and
construction on dry brush increases the fire danger such that the County should require the
installation of fire hydrants at a condition of approval. The Appellants also argue that other
requirements stated in comments filed by the Redmond Fire Marshal must be incorporated
into conditions of approval for this application. Last, the Appellants argue that all the Resort
property has not been annexed into the Redmond Rural Fire District (RRFD), but agree that
the site plan property is annexed into RRFD.
The Applicant responded by submitting documents that show the entire Thornburgh Resort
property was annexed into the RRFD. The Applicant also explained that the CMp made such
annexation a condition of approval, and that the condition was determined to have been
satisfied by the FMP. Further, the Applicant submitted an email from Clara Butler, Redmond
Fire Marshal, clariffing that RRFD doesn't require fire hydrants or access, until such time that
combustible materials for structures are on site. The subject site plan includes neither.
Staffs Administrative Decision determined that a safe environment under DCC 18.124.060(C)
includes fire safety, and found on page 32 of that decision as follows:
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course Page9of17
"Moreover os required under DCC 18.124.060 the Applicont shott provide written
confirmotion from the Redmond Fire Department thot ott applicabte fire sofety
stondards ore met; including this developmen(s compliance with the resort's
Wildfire/Notural Hazord Protection Plan shott be submitted prior to
co m m e n ce m e nt of co nstru cti o n, eo rth m ov i ng, o r cl eo r i n g.',
The BOCC finds for the reasons above, the application compties with FMp Condition 17
without the cited finding in the administrative decision or the related language in condition
of approval H from the administrative decision to impose such a requirement of the site plan
approval. The email from RRFD resolves concerns about fire safety and DCC 18.124.060(C) is
met as it relates to fire safety. The language quoted above is removed from page 32 of the
appealed decision from page 32 as is the last sentence of Condition of Approval H.
F. Compliance with 18.124.060(8)?
DCC 1 8.1 24.060(8) requires:
The londscope ond existing topogrophy sholl be preserved to the treotest extent
possible, consldering development constroints ond suttobility of the londscope ond
topogrophy. Preserved trees and shrubs shqll be protected.
The Applicant's Burden of Proof states:
'The golf course is being designed and built with a minimalist philosophy where the
entire design and development process aims to create the minimal amount of
impacts to the natural environment and landscape. This is a key cornerstone of the
resort's minimalist development philosophy, a concept popular 100 years ago.
Fairways will be laid into the natural topography to minimize the earthwork required.
The golf course will adapt and adjust to unique features, like rocks, ledges, valleys,
and unique old growth Juniper trees. lt is a given that significant clearing will take
place to accommodate golf play and provide for the safety of the golfers and
employees. Furthermore, the removal of juniper trees is authorized by the Wildlife
Management Plan to reduce water consumption and thereby benefit wildlife. Clearing
will, however, be done with a light touch. Furthermore, minor refinements will be
made during the clearing and construction process to preserve natural features,
trees, and other interesting characteristics the land presents. The lake has been sited
to take advantage of natural topography to minimize the earthwork.,,
Appellant COLW argued as follows:
'The Applicant in response to this requirement identifies nothing that will be
preserved and merely asserts having 'a minimalist philosoph/ and a 'light touch.'
More is required of a site plan or else this requirement is meaningless. There must
be a showing of what is to be preserved and how. lf preserved trees are to be
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-sP Thornburgh Golf course page 1 0 ot 17
protected, we need to know what the preserved trees and shrubs are in the first
place."
ln response the Applicant stated
'The [A]pplicant provides substantial details in Ex. 46 how this issue was resolved by
the far broader standards of the CMP and FMP, including the WMP/FWMP, the Natural
Characteristics Report (Ex. 42), the Wildlife and Habitat Report (Ex. 43), the Open
Space Management Plan (Ex. 441. Extensive planning and analysis was completed to
comply with the CMP/FMP that meets this standard. Further the [A]pplicant has
provided evidence that it will use a light touch to build the golf course that will
preserve the landscape and topography to the greatest extent possible. The site plan
itself shows the fairway lines, which represent the area that typically would be
cleared, completely. The materials have stated that while we may clear everything
within those corridors on some fainruays that we will use extreme efforts to leave as
much vegetation within those corridors as possible. The areas outside of the golf
fairway corridors is covered by FMP condition #34 which deals with the restoration of
disturbed native vegetation. The WMP (Ex. 38 and Ex. P) deals with the timing of when
restoration efforts take place. Additional details are found in Ex.46: CollateralAttacks,
and in Ex. 48: Comments Chart, Section 13, Pg. 15-16."
Exhibit 46 #13 discusses issues relating to the protection, preservation, enhancement, and
maintenance of natural features, natural characteristics and natural resources that were
previously resolved under CMP approval criteria DCC 18.113.050(BX1), (4) & (5) and
18.113.070(E). The Applicant claims the CMP approval criteria, which have already been
approved are broader than the requirements of '18.124.060(8). The Applicant submitted
numerous documents from the CMP approval, including; Ex. 42:The Natural Characteristics
and Geology Report from Newton Consultants, Ex. 43: The Wildlife and Habitat report from
Tetra Tech, and; Ex.44:the Open Space Management Plan that assure compliance with DCC
18.124.060(B).
The BOCC finds that the Appellants' argument that every tree and shrub to be preserved
needs to first be identified and catalogued is unrealistic on a site plan of this size, roughly
100 acres, as it could entail thousands of trees and shrubs. That information, in this case, is
unnecessary to achieve compliance with this criterion. The Applicant has already met the
related requirements of the CMP in 18.113.050 and 070 which are broader than those of
18.124.060(8). The CMP materials consistently state a concerted effort will be made to
minimize the impacts to natural resources, which is carried into this current application, to
protect the landscape and topography. As stated in the application, the golf course and
reservoirs were sited to minimize earthwork to preserve topography to the greatest extent
possible. The fairway lines are significant. The area inside the fairwa/s lines may be cleared
completely and still achieve compliance with this code criterion because this is typically
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course Page1lof17
necessary to construct any golf course and because Condition 34 of the FMP authorizes the
removal of native vegetation from the golf course. The applicant has, however, agreed to use
to preserve the landscape and topography within this area, where possible.
The areas outside the fairway lines (improved golf corridor) are covered under Condition #34
which reads.
34. Where construction disturbs natlve vegetotion in open spoce oreos thot ore to
he retoined ln substontiolly noturol conditlon, Applicant sholl restore the nqtive
vegetqtion. This requirement sholl not opply to lond thot is improved for
recreotionol uses, such os golf courses, hiking or noture troils or equestrion or
bicycle poths.
The WMP prescribes the how, the what, and the when related to such restoration efforts of
disturbed and protected areas and achieves compliance with DCC 18.124.060(8). This
criterion is met.
G. Compliance with DCC 18.124.060(D)
DCC 1 8.1 24.060(D) requires:
When oppropriote, the site plan sholl provide for the speciol needs of dtsobled
persons, such os romps for wheelchqirs qnd Brqille signs.
The Appellants argue this resort is open to the public and its recreational assets must meet
ADA criteria for golf carts, including paving golf course paths. The Appellants further argue
that showing the approximate locations of tees, greens, and other golf facilities is not
adequate. Last, the Appellants also make several arguments related to the recreational use
of the lakes, including that the beach areas at the large lake do not show how they will meet
ADA guidelines for use or access, that lifeguards are needed, and that the lakes are to be
used for water skiing.
The Applicant's Exhibit 17, pg.1 5, the Guidelines for ADA compliance by the US Access Board
demonstrates that while golf cart passages must be usable for golf carts, they do not need
to have a prepared surface but may be part of a golf cart path. That said, the Applicant stated
that the golf course will be ADA compliant and will provide barrier free access to its facilities,
in accordance with the guidelines provided by the US Access Board. Once the Applicant files
site plans for the golf clubhouse including parking and related facilities, the Applicant will be
required to provide additional details for ADA compliance with those facilities as outlined by
the US Access Board. ln relation to the lakes and beaches, the BOCC finds that this
application does not propose, and its decision does not authorize recreational use of the
lakes and beaches.
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File No. 247-'19-OOO881-SP Thornburgh Golf Course Page 12 of 17
The BOCC understands the only recreational use proposed by this site plan is the golf course,
and that the Applicant has committed to adhering to the US Access Board Guidelines detailed
in its Exhibit 17 to comply with ADA requirements for the golf course. The BOCC determines
this criterion is met with those assurances.
H. Compliance with DCC 1t.116.030.
The Applicant argued that DCC 18.1 15.030, OffStreet Parking and Loading, by its plain terms
does not require the Applicant to provide parking spaces for development of its golf course
because no buildings are proposed by the site plan. DCC 18.1 16.030 requires:
"[Ofif-street parklng spoces shall be provided ( on the effective date of DCC Titte 18
is chonged."
The Appellants argued that because the Applicant has segmented the application process
and only applied for certain elements of Phase A of the resort, the site plan for the golf course
and lakes is incomplete where it fails to address the site plan criteria for the required parking,
walking paths, lighting and structures and facilities for the golf course and lakes. The
Appellants further argue that a condition of approval deferring compliance with these
elements is inappropriate as the code criteria must be satisfied before a site plan for the golf
course can be assessed.
The BOCC finds that no relevant approval criterion requires an applicant to apply for all
development authorized to occur within the first phase of a destination resort at the same
time. ln fact, the code clearly contemplates phased construction of improvements within
each resort phase by prohibiting lot sales and the development of single-family homes until
recreational facilities and overnight lodging units have been built or bonded.
The BOCC further interprets DCC 18.1 1 6.030, contrary to the Applicant's argument, to speciff
at what time parking must be provided for new or enlarged buildings ("...at the time a new
building is hereafter erected or enlarged or the use of building existing..."), but not to
preclude parking requirements for uses that do not involve buildings. Parking must be
provided for uses subject to site plan review and accessed by vehicles, as required by DCC
18.116.030(A). The BOCC finds that provision of such parking would likely be necessary to
make findings of compliance with 18.124.060(C and E).
However, the BOCC does not support the Appellants' argument and finds that a motor
vehicle parking lot is not required; where, as here, an applicant will not be opening the golf
course for public use until it has developed a parking lot for golfers which it plans to secure
when it files for approval of the golf clubhouse. This site plan approval allows construction
of the golf course only; not use of the course by the general public which will not occur until
after parking has been provided. The BOCC includes the following condition of approval:
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File No. 247-19-000881-SP Thornburgh Golf Course Page 13 of17
Off-Street Parking: Prior to initiation of use of the golf course, the applicant shall apply for
and receive Site Plan Review approval for off-street parking for the golf course.
Likewise, birycle parking spaces are not required because motor vehicle parking spaces are
not required. DCC 1 8.1 1 6.031 requires birycle parking only for "uses that require off-street
motor vehicle parking." To the extent that the present decision defers determination of
compliance with parking standards to a later review, the review will be a site plan review that
will provide a full public right to participate, including the right to a hearing.
l. Rebuttal Documents.
The Applicant claims much of the Appellant Gould's rebuttal materials are new evidence, not
rebuttal evidence as allowed by DCC 22.24.140(D):
Leoving record open. lf ot the conclusion ol the initiol heoring the Heorings Body
leqves the record open for oddltionql evldence or testimony, the record sholl be left
open for ot leost 14 oddltional doys, allowing at leost the flrst seven days for
submittol of new wrltten evldence or testlmony ond ot ieost seven odditionol doys
for response to the evldence received whlle the record wos held open. Written
evidence or testimony submitted during the period the record is held open sholl he
limited to evldence or testlmony that rebuts submitted evidence or testlmonv.
(emphasis added). ORS 1 97.763(6)(c) specifies:
U the heorings authority leoves the record open for oddltionol written
evidence, orguments or testimony, the record sholl be left open for ot least
seven doys. Any porticlpont moy lile a wrltten request with the locol
government for qn opportunityto respond to new evidence submitted during
the neriod the record wos left oaen. lf such o reouest is filed. the heorinss
outhority sholl reopen the record pursuant to subsection (7) of this section.
(emphasis added). Pursuant to both applicable DCC and state statutory provisions, new
evidence must be flled during the flrst post-hearing comment period and evidence in the
second post-hearing comment period is limited to responses to new evidence filed in the
first post-hearing comment period.
The Applicant argues that improper rebuttal included materials from Anuta, Jeff Kleinman,
Gould, Mel Stout, and Don Barber received during the second post-hearing comment period
that closed on July 8,2020.
The BOCC finds that specific items the Applicant cites as improper rebuttal from Kleinman,
Gould, Stout and Barber were not responsive to evidence or testimony submitted by
Applicant and are rejected. The Applicant's final argument provided a detailed list of
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-00A881-SP Thornburgh Golf Course Page 14 of 17
(c)
improper rebuttal evidence. The BOCC concurs with Applicant and incorporates Exhibit B,
which is incorporated in its entirety into this decision, regarding improper rebuttal, including
findings that explain why these arguments, should they be deemed proper rebuttal on
appeal, are not grounds for denial of the site plan. The BOCC adopts Exhibit B as findings
that support approvalof the site plan application.
rv. DEctstoN
The BOCC finds that the application for approval of the site plan for the golf course and lakes
meets the applicable criterion and hereby affirms the Administrative Decision with the
modifications and clarifications contained herein.
V. Conditions of Approval
The BOCC adopts and restates the conditions of approval from the administrative approval,
with modifications shown in underline and strj*ethreugh.
A. This approval is based upon the application, site plan, speciflcations, and supporting
documentation submitted by the applicant. Any substantial change in this approved
use will require review through a new land use application.
B. Landscaoe & Tooograohv Preservation: During construction and as an onsoing
conditlon of approval, the landscape and existing topography shall be preserved to
the greatest extent possible, considering development constraints and suitability of
the landscape and topography. Preserved trees and shrubs shall be protected.
C. Exterior Lighting: As an ongoing condition of approval, all exterior lighting shall be
shielded so that direct light does not project off site.
D. Road Crossings: Prior to initiation of use of the golf course, where the walkway
system crosses roads, the walkways must be clearly identifiable through the use of
elevation changes, speed bumps, different paving material, or other similar method.
E. Off-Street Parking: Prior to initiation of use of the golf course and$, the
applicant shall apply for and receive Site Plan Review approval for off-street parking
for the golf course an4.lakes.
F. Driveway Access: Prior to lnltlation of use of the golf course and lakes, the
applicant shall obtain driveway access permits for any new or existing unpermitted
road accesses to Cline Falls Road pursuant to DCC 17.48.210( ).
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course Page15of17
G. FMP Condition 5: Prior to initiatlon of use of the golf course and lakes, the
developer will design and construct the road system in accordance with DCC Title 17.
Road improvement plans shall be approved by the Road Department prior to
construction.
H. FMP Condition 17: All development within the proposed resort shall meet all fire
protection requirements of the Redmond Fire Department (Redmond Fire & Rescue).s shall inelude all minimum emergeney readway
imprcvement+
l. FMP Condition 29: As an ongolng condition, comply with the ODOT Contribution
Agreement to "assure the applicanfs mitigation responsibility to ODOT is met now
and through completion" of the resort.
J. FMP Condition 31: As an ongoing condition, all exterior lighting must comply with
the Deschutes County Covered Outdoor Lighting Ordinance per Section 15.10 of Title
15.
mHst be physieally previded er finaneially assured pursuant te DCC 18,1 13,1 10 prier
te elesure ef 'ales, rental er lease ef any residential dwellings erlets
Dated this20day of August 2020.
BOARD OF COUNry
COMMISSIONERS FOR DESCHUTES
U*U
PattiAdair, Chair
Anthony DeBone, Vice Chair
?L6
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course
Philip G. Henderson, Commissioner
Page16of17
THIS DECISION BECOMES FINALWHEN MAILED. PARTIES MAYAPPEALTHIS DECISION TO
THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS
DECISION IS FINAL.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-'19-OOO881-SP Thornburgh Golf Course Page 17 of 17
EXHIBIT A: ISSUES BARRED UNDER THEORY OF COLLATEML ATTACK
Following are the 17 categories of items that opponents raised in this proceeding that were
resolved in the CMP (items 1 ,2,3,3A, 5, 8, g, 10, 1 1, j2, 13, 14, 15,16 & 17) and FMp (items
4,6 & 7) and are barred as lmproper Collateral Attacks, as described in the Decision, which
generally says that: lssues that were raised and resolved or could have been raised about an
issue during the review of the CMP/FMP may not be raised during subsequent proceedings
including the review of the golf course site plan and should be rejected. Further details of
these "barred" issues can be found on Ex. 48: Applicants Comments Chart, Sections 1-17.
Many of Opponents claims in this and past proceedings, including all of the claims listed in
#1-5 below relate to water, that it is not available, that Applicant does not have it, cannot use
it, or that it is not adequate in some way. The 2008 Hearing Officer found the OWRD water
rights process is the only way to determine whether mitigation water is returned to the
streams. The Board concurs, finding, save for the limited role afforded the County by
Condition 10 and the FWMP, that the oWRD is the authority which governs the Resorts water
use and mitigation. And, that it is OWRD, and not the County that will administer and monitor
whether the Resort has adequate water, including mitigation water for the Resorts
development going forward. ln spite of the limited role the County has, the following issues
are the "wate/'issues Opponents raise here:
1. Availability of Water - CMP: 18.113.070(K) reads, in part:
Adequote wqter will be ovqllqble for oll proposed uses ot the resort, bosed upon the
water study ond o proposed woter conseruqtion plan. Woter use will not reduce the
avotlobiltty olwoter ln the woter lmpoct oreos tdentifted tn the woter study considering
existing uses ond potentlol development prevlously opproved ln the oreo.
The Board finds issues related to water availability for all the Resorts proposed uses are CMp
criterion resolved by approval of the CMP. Any further attack is an impermissible collateral
attack. Because the Applicant is using water for an approved use and is not proposing
changes to the prior approvals, no further actions are required by the County to comply with
this settled issue. The Board finds the Opponents claims are not applicable to any relevant
site plan approval criteria. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims regarding water availability include:
a. Water availability has not been proven.
b. The applicanfs assets, including water rights, are secured for loans.
c. A lake by deflnition is filled with water.
d. The Resort does not have the water to fill the lakes, water the ground, or provide
the needed fire flow.
e. The amount of water needed for the lakes may not be correct.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHtBtT A Page 1 of 22
f. CMP Studies finding no impact on neighboring wells are false, the water table is
dropping, our wells will be impacted, occupancy rates will increase usage.
g. Watering a golf course is a waste of the resource, and the area does not have
enough water for this use.
h. The golf course, the lakes, and the water for them as well as their construction
and maintenance, was not approved in earlier proceedings.
i. Any issue related to water is not a collateral attack.j. The decision was flawed to find compliance with 18.1 13.070(K).
lssues raised by: N. Gould, N. Engebretson, Ambers, P. Geiser, D. Stout, P. Lipscomb,
COLW, G. Burton, H. Lonsdale, M. Saslow, andJ. Kleinman.
The Applicant responded:
18.1 13.070(K) required the water study to obtain approval of the CMP which needed
to include water for all proposed uses at the resort. The CMP application (and water
study) and the resulting approval included 3 golf courses plus ancillary golf facilities,
up to 77 acres of lakes, along with the maintenance, evaporation, and construction
needs of the resort (See Ex. 30, Board CMP Dec., Pgs. 5-9). ln the 2006 CMP
proceedings the Board found the resort's source of water is ground water from the
regional aquifer and that the applicant submitted the required water study which
demonstrated that adequate water is available for the entire Thornburgh Resort
project. Applicant also submitted a copy of its application to OWRD and a letter from
Dwight French, OWRD to the record of the CMP, confirming that ground water was
available for the project. and that, the proposed use of ground water from new wells
was not expected to interfere with other existing ground water uses. The Board noted
the OWRD conclusions were "supported by conclusions reached in the Water
Study submitted by Applicant, and in the report prepared by Eco: Logic on
behalf of the proJect opponents." The Board added that "[b]ased on this
information, Applicant demonstrated that ground water is available...." and "the
water availabillty standard has been satisfled by the Applicant." See Ex. 30, CMP
Board Pg.23. Also, Opponents has not cited to relevant approval criterion and that
the claims are not relevant to the approval of this site plan.
While no further evidence or argument is needed for this site plan approval for these issues,
the Board finds that Applicant has met the standard. The evidence shows the uses proposed
by this site plan were previously approved, that Applicant has provided an accounting of the
water required for the proposed and approved uses including the water needed for the
maintenance and evaporation of the lakes which is based on amounts from the water study,
the total water demand is less than the 2,129 acre-feet the Applicant is permitted to pump.
See Ex. AA. Further, Jan Neuman, Applicant's water rights counsel states Applicant has
hundreds of acres of water rights the resort could use for the project. See Applicants Ex. O,
& Ex. 18, Neuman Letters.
2. Availability of Mitigation Water - CMP. 18.113.070(K).
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page2of 22
The Board finds the issues related to availability of mitigation water for all the Resort's
proposed uses are CMP criteria that were resolved by approval of the CMP. Any further
attack on them is an impermissible collateral attack on the CMP. Because the Applicant is
using water for an approved use that is not proposing any change to the prior approvals, no
further actions are required by the Applicant to comply with this settled issue. Further, the
Board finds that the Opponent claims are not applicable to any relevant site plan approval
criteria. As it is conceivable these findings will be challenged on appeal, the Board has also
addressed and resolved the arguments raised on their merits below.
Opponent claims regarding the availability of mitigation water include:
a) The 2OO7 Big Falls Ranch (BFR) agreement was revoked, and Applicant refuses to
show the new agreement with BFR.
b) The applicant's assets, including any alleged mitigation water is secured for loans.
c) The applicant does not have mitigation water now, it has not registered mitigation
water with OWRD.
d) Applicant only has temporary mitigation credits.
lssues raised by: N. Gould, COLW D. Arnold
The Applicant responded:
The claims that "applicant needs to have mitigation water to obtain land use
approvals, or that it has not shown mitigation water is available" were made and
resolved numerous times, beginning 15 years ago with the approval of the CMP in
front of the Hearing Officer. Then applicant provided information mitigation water
was available for purchase from numerous sources including Big Falls Ranch,
Deschutes Resource Conservancy, COID and the McCabe Trust. Applicant provided a
Memorandum of Agreement evidencing its Option to purchase water from Big Falls
Ranch but did not provide the agreement itself. Gould argued applicant was required
to provide copies of the actual agreements it had for mitigation water. The Board, in
its 2006 decision denied Gould's claim, noting this was a bigger policy question; "The
question before the Board lBoard] is whether, in order to demonstrate that
water is "available" under the county standard, an Applicant must provlde
evidence of actual mitigation credits at the time of county revieq or whether
it is sufflcient to demonstrate that lt is feasible for Applicant to obtain sufficient
credits by the time the credits are ultimately required under the OWRD water
right process." See Ex.30, Board CMP Dec. Excerpts, Pg.24
ln determining the county's standard the Board looked to LUBA's Boumon v. Jackson
County,23Qr LUBA 628,647, decision and interpreted the Countystandard to require
no more than what Boumon required, namely that a decision approving the
application simply requires that there be substantial evidence in the record that
Applicant is not precluded from obtaining the required mitigation [water rights
permitsl. The Board went on to say that: "even if the standard were interpreted to
require more it certainly would require no more than a showing that the
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-'19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 3 of 22
acquisition of the necessary mitigation credits is feasible. Such a showing can
include evidence that mitlgation water is generally available in the basin and
that the Applicant has a reasonable plan for acquiring mitigation from available
sources." See Ex. 30, Board CMP Dec. Excerpts, Pg.24. The Board approved the CMP
because Thornburgh had made both showings; settling the issue of whether
mitigation water is available for the Resort's use and that it had a reasonable plan.
The issue of whether a mitigation purchase agreement must be provided to the
County was specifically addressed and resolved against Gould. Gould argued "that
Applicant is required to provide copies of the option or purchase agreements
described by Applicant in materials filed with owRD and the county.,, ln
response, the Board said "the Board disagrees such documentation is required.....
the evidence that mitigatlon water will be available is overwhelming without
the need to have copies of the actual option or purchase agreements in the
record." The Board concluded Applicant easily met the required standard noting
Applicant's evidence of the option agreement with Big Falls, which was confirmed by
Rex Barber, President of BFR See Ex. 30, Board 2006 CMP Dec. Excerpts, pg.27 .
The Board finds the evidence shows the Applicant has met the standard to show it has the
mitigation water available that it will need to mitigate for the amount of water required when
needed for this site plan. The Applicant provided a current recorded Memorandum of
Agreement evidencing its purchase contract (not Option agreement) with Big Falls Ranch (See
App. Ex. T, Memorandum of Agreement with BFR). Applicant's water counsel Jan Neuman
verified the MOA s existence, and that it was for f ar more water than is needed for all of the
resorts Phase A water mitigation needs, which was also conflrmed by Rex Barber, President
of BFR, and Liz Fancher, Applicant's land use counsel. See App. Ex. U-2, Neuman Letter
9124118, App. Ex. 19, Liz Fancher memo.
3. CMP Condition 10: This condition states:
10. Applicont shall provide, ot the time of tentotive plotlsite plon review lor eoch
individuol phose of the resort development, updoted documentotion for the state
woter right permit ond qn occountlng oI the full omount of mittgation, os required
under the woter right, for thot individuol phose.
The Board finds the issues related to the interpretation of Condition 10 was resolved by
approval of the CMP and any attack on Condition 10 is an impermissible collateral attack on
the CMP. Because the Applicant is using water for an approved use that is not proposing any
change to the prior approvals no further actions are required by the County to comply with
this settled issue. Further the Board finds that the Opponents claims b-d below are not
applicable to any relevant site plan approval criteria. As it is conceivable these findings will
be challenged on appeal, the Board has also addressed and resolved the arguments raised
on their merits below.
Opponent claims include:
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-00A881-SP Thornburgh Golf Course - EXHIBIT A Page 4 of 22
a) The application has not provided the required documentation.
b) The decision erred in finding compliance with Condition 10 because the applicant
has not shown it has an enforceable contract with BFR.
c) The applicants permit is expired, Gould protested extension, Applicant had no
beneficial use, filed extension late, can not pump any water, the record changed,
and has no water for fire safety.
d) Applicant is seeking to delay compliance with the condition.
lssued raised by N. Gould and COLW.
The Applicant responded:
Condition #1 0 was made a condition of approval by the Board of County Commissioners
when it approved the CMP in 2005. lt overturned a finding by Hearings Officer Briggs
that said "until the applicant demonstrates that it has enough mitigation credits to
mitigate for 942 acre-feet of water (the estimated amount of consumptive use per
owRD), it is unlikely that the application will be approved." See ExhibitJ, page 25 of the
CMP decision. Thornburgh appealed Hearing Officer Briggs' decision to the Board
arguing that mitigation water only needed to be provided when the water rights permit
dictated; not prior to development of the entire resort. As explained by Steve Johnson,
COID Manager:
'The decision rendered by Hearings Officer Anne Corcoran Briggs last month
implies that the Resort must bring all of the water to the table with the
application. This decision, if left unmodified, will set a precedent that will
artificially escalate the competition for water rights in the basin, and
consequently drive the price up, and drive some farmers out. Her analysis of
Water Availability on page 25 expressly conditions approval of the application
on having the credits in hand now. Some of this water will not be needed for
many years, and this policy, if followed, will be a waste of water, against the
beneficial use doctrine that is the pillar of Oregon's water law policy." See
Exhibit K.
The Board agreed with the Resort. In reaching this decision, the Board found that
Thornburgh needed to provide mitigation water when required by the OWRD water
right permit and prior to that time it is only necessary for the Resort to show it is not
precluded from obtaining mitigation water as a matter of law. The Bodrd found
Thornburgh exceeded this standard by showing it is feasible for it to obtain
sufficient mitigation water when required by OWRD. See Board CMP Decision Pgs.
70-72, Exhibit L. The Board imposed Condition 10 as a condition of approval of the
CMP to insure it provided an accounting of the mitigation water needed for each
phase of development. Hearing Officer Olsen, in the Phase A-1 tentative plan decision,
explained Condition 10's requirements as follows:
"Condition 10 appears primarily to be an informational requirement
requiringdocumentation of the state water permit and an accounting
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-OOO881-SP Thornburgh Golf Course - EXHIBIT A page S of 22
of mitigation under the water right."
Hearing Officer Olsen was correct in what Condition 10 requires. lt is an informational
condition requiring updating the documentation of the water permit and providing
an accounting of the amount of mitigation needed under the water permit for each
phase of development. Opponents are attempting to expand the scope of what
Condition 10 requires. The time to have done so was during the CMP proceedings.
They cannot come back and make a belated claim to amend an approval made 14
years ago. To do so is a collateral attack on the CMP and any change to the intent of
Condition 10 should be rejected.
The Board agrees this was resolved in the CMP with an intent consistent with Hearing Officer
Olsen's interpretation, that it is an "informational requirement". The language of Condition
10 requires "updated documentation of the state water right permif'. lt does not require that
the documentation show any particular status, for example; that the permit is free of protest,
or the extension is pending. lt just requires updated documentation which the Applicant
provided. lt shows the Applicant has a water rights permit, that the permit has not been
cancelled, and that it is in good standing. Condition 10 does not require the Applicant to
provide an agreement, or anyform of proof of an agreement or contract for mitigation water.
It just requires Applicant to provide an accounting of the mitigation water for the uses in this
site plan. Opponent attempts to expand the scope beyond that is a collateral attack on the
CMP.
3A. Need Reservoir Permit.
The Board finds that opponents raising the issue at this stage is an impermissible collateral
attack on the CMP and the Water Rights permit process. lt is also improper rebuttal, (See Liz
FancherJuly 15,2O2Q response to Anuta letter and Ex. 47l.lt is also not relevant to any site
plan approval criterion.
Opponent Gould claims Applicant needs a reservoir permit to hold water in its lake.
The appl icant responded:
The reservoir permit issue is one that should have been raised during the review of
the CMP; not during review of the golf course/lake site plan when it is an
impermissible collateral attack on the CMP. CMP criterion DCC 18.1 13.070(K) required
the Resort to demonstrate "adequate water will be available for al! proposed uses at
the destination resort."
The Board finds that, at no submission from OWRD has ever suggested such a reservoir
permit was needed. To the contrary, the Resorts water rights permit explicitly authorizes
year-round use for:
"QUASI-MUNICIPAL USES, INCLUD|NG tRRtGATtON OF GOLF COURSES AND
COMMERCIAL AREAS, AND MAINTENANCE OF RESERVOIRS.''
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 6 of 22
ln this site plan and the prior Phase A-1 proceedings OWRD stated multiple times that
Applicant has a water rights permit G-17036 for the proposed Project that is in good
standing. ln this for the golf course and lakes OWRD confirmed that Applicant only needed
to provide mitiSation water in order to pump water for these uses. Further details on the
merits are included in the Decision.
4. Availability of Mitigatlon Water & Adequacy of BFR Water - FMP. 18.113.070(D).
As noted above the Board found the issues related to availability of mitigation water for all
the Resorts proposed uses are CMP criterion that were resolved by approval of the CMP.
lssues related to the Availability and Adequary of the Big Falls Ranch water was resolved with
the approval of the Fish and Wildlife Mitigation Plan (FWMP) during the FMP proceedings.
Any attack on them is an impermissible collateral attack on the prior approvals. The Board
also finds that the Opponent claimi are not applicable to any relevant site plan approval
criteria. As it is conceivable these findings will be challenged on appeal, the Board has also
addressed and resolved the arguments raised on their merits below.
Opponent claims include:
a. The BFR water is pledged as security for other uses.
b. The flow of Deep Canyon Creek needs to be measured,
c. lt's unclear whether the BFR water is "paper" water or "wet" water,
d. The COID water is not included as mitigation water, and;
e. BFR transferred the point of appropriation of its water rights.
lssues raised by Y. Lind, COLW, J. Kleinman, N. Gould
The Applicant responded
The issue of the availability of mitigation water was conclusively resolved in the CMP.
Nothing further was required for the FMP. The FMP did not require the applicant to
veriff or re-certif, the finding of the CMP that mitigation water was available for use
in the FWMP.
During the review of the FWMP, the applicant provided additional information to
show that water from Big Falls Ranch would be used to provide thermal mitigation
and that it was feasible for the Resort's water supplier to obtain this particular cold
mitigation water to meet the no net loss standard of DCC 18.113.070.D. During the
FMP proceedings, Gould raised issues related to availability and the adequary of BFR
water including:
A. BFR Water is already pledged for other purposes and is not available for
mitigation.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A PageT of22
B. BFR transferred some of their water rights within their property it's hard to
substantiate them. lt appears the BFR water right are not what Thornburgh says.
C. The acquisition of water rights is not evidence that water will actually be returned
to the rivers and streams as alleged as water rights are merely paper
representations of water quantities.
The hearings officer disagreed, denying Gould's arguments, and approving the FMP
without any condition requiring any proof then, or in the future, that i) the BFR water
rights were not pledged or secured elsewhere; and ii) there is no requirement that
Deep Canyon Creek flow be subsequently measured or confirmed. She also
determined the OWRD water rights process is the only way to ensure actual
mitigation water is returned to the streams. See Ex. 21,2OOB Hearing Officer Dec. Pg.
23-24, Ex.25: Gould 3'd Memo, Pg.4, with Crocker attachment.
Gould appealed to LUBA arguing while the hearing officer noted there was substantial
evidence that Thornburgh had the right to use BFR water, "the Hearlng Officer
provided no condition of approval actually requiring that the necessary water
be returned to Deep Canyon Creek or findlng that it was feasible to do so." LUBA
denied the claim, noting that'Thornburgh responds that the Fish WMP and the
August 11, 2008 letter to the hearings offlcer make it clear that Thornburgh is
obligated to mitigate by acquiring the Big Falls Ranch water rights and
returning that water to Deep Canyon Creek." LUBA concluded:'We agree with
Thornburgh."
Gould questioned: "whether the COID water would be available" arguing "the
Hearings Officer made no finding of feasibility and did not include a condition
of approval requiring that proposed mitigation water actually be available and
used." On this issue LUBA stated: "Thornburgh responds, and we agree, that the
issue of the feasibility of acquiring water rights from COID if necessary was
resolved in our decision in Gould I (the appeal of the CMP)." See Ex. 31 FMP Appeal,
Pgs.3-7.
Gould appealed LUBAs decision to the Court of Appeals. Specifically, in her 2nd
assignment of error, Gould argued:
1. "Actual mitigation from Big Falls Ranch is not required,"
2. "No condition requires actual mitigation by Central Oregon lrrlgation
District water,"
3. LUBA erred when it found the COID mitigation water "does not necessarily
offset thermal impacts on fish associated with the requirements of DCC
18.113.070(D), and;
4. A general condition only requiring compliance with OWRD rules is not
sufficient."
Gould argued that condition 10 only requires the applicant comply with water laws
administered by OWRD. And that a "condition of approval on water quantity does
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 8 of 22
not obviate the need for a condition on water quality." Gould asked the Court to
add further conditions of approval. See Ex. 31. FMP Appeals Excerpts, pg.14.The CoA
denied Gould's claims, did not require any further conditions, and found that LUBA
did not err in simply requiring compliance with the FWMP. Goutd v. Deschutes County,
233 Or App 623, 635,227 P3d 758, 765 (2010). 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.
LUBA affirmed this in 2019 during the Tentative Plan appeal stating:
"FMP Condition 38 requires interuenor to "obide by the April 2008 Wildlife
Mitigotion Plon, the August 2008 Supplement, and ogreements with the BLM
ond ODFW for monagement of off-site mitigation elfortsfi ond ,,submit on
annual report to the county detailing mitigotion octivities that have
occurred over the previous yedr. * * *
As estoblished in prior oppeols, the mitigotion plon satisfies the substontive
no net loss/degrodqtion stondord for destination resort development. We
agree with interuenor [Centrol Land] that the detoils of the mitigation plon
ore estoblished by the FMP, and compliance br noncompliance) with the
mitigotion meosures will be established by onnual reporting required by
FMP Condition 38. We rejed petitionerb argument thot the FMp required
interuenor to flll inlhc_dStgilgto obtoin opproval of a tentotive plon during
phased development."
Gould v. Deschutes County, _ Or LUBA _ (LUBA No. 2018-140, June 21 ,2}lg,
Slip Opinion p. 37). Also Ex. G. LUBA TP Dec.
As noted above, the applicant is required to comply with the terms of the FWMP.
Compliance with the FWMP is assured by the annual reporting of mitigation that
OWRD and the WMP requires applicant to complete. LUBA makes clear the Applicant
is not required to do anything further to comply with the FWMP in order to obtain
further development approvals. The constant barrage of frivolous claims regarding
this issue are barred bythe CMP, the FMP, and the FWMP. They should be disregarded
and denied outright.
Opponents have again raised the issue of BFR's transfer of its water rights internally,
claiming now, and in the TP that the transfer of the point of appropriation from Deep
Canyon Creek to groundwater wells on their property made the water unavailable for
mitigation. As overwhelming evidence shows, this is false and should be disregarded.
The BFR rights are still surface water rights, BFR still owns them, and they are still
available for mitigation. See Kyle Gorman, OWRD District Manager emailJuly 1, 2020,
Ex.23: emailfrom Sarah Henderson, OWRD, Ex. U-2:Jan Neuman Letter. 9/24/19,Ex.
19: Liz Fancher memo, Ex. 20 K. Delashmutt arguments.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBITA Page 9 of 22
The Board finds that the evidence and testimony Applicant has submitted shows BFR water
is available, which is adequate. Further, issues related to the Big Falls water were resolved
by the approval of the FWMP/FMP. Compliance with the FWMP is accomplished via the
annual reporting required in the FWMP/WMP. The Board finds the applicant is not proposing
any change to the FWMP/FMP and that no further actions are required to comply at this time.
5. Applicant lmpaired lts Ability to Use lts Water with Liens on lts Assets.
The Board finds this is a claim on the Availability of Water, which as noted in #1 above is a
CMP criterion 18.113.070(K) that was resolved in the CMP. Gould's failure to raise it then
does not allow the argument to be made nory as it is a collateral attack on the CMP. The
Board also finds that the Opponent claims are not applicable to any relevant site plan
approval criteria. As it is conceivable these findings will be challenged on appeal, the Board
has also addressed and resolved the arguments raised on their merits below.
Opponent Gould claims because applicant has pledged its assets as security for loans it
cannot use it water rights and other assets to provide mitigation as required.
The Applicant responded:
This is a sideways, and belated attack on the issue of water availability resolved by
the CMP years after the approval was granted. The time to have addressed those
issues was during the review of those plans. Gould's failure to raise the issue at the
appropriate time does not allow it to be visited now. Also, as noted in letter from Jan
Neuman, Applicant's water attorney, it is routine for development projects of this
scale to have loans secured by project assets which is supported by evidence Mr.
Delashmutt provide in rebuttal that at the time of the FMP approval Applicant had
roughly $23 Million in debt that was secured by the project assets. Certainly, if that
was an issue, it should have been raised then. The failure to do so is a collateral attack
on those prior approvals and should be denied outright.
The Board finds that it is routine for developers and certainly large development projects to
have loans secured by the project assets, and that those loans do not preclude the use of
the project assets for the benefit of the project. Further, at the time of previous approvals
the evidence shows the project had far larger debt, that logically should have been of greater
concern, but it was not raised. This claim is not grounds for denial of this site plan.
6. Removal of Deep Canyon Creek Dams - FWMP IFMP - 18.113.070(D). Condition #38.
The Board finds this criterion was resolved with the approval of the FWMP in the FMP
proceedings. The Applicant is not proposing any change to the FWMP and as such this is a
collateral attack on the FMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page10of22
a. The impoundments are stillthere.
b. The head gate is out but the concrete weir is still there.
c. Pictures shows water being impounded.
d. The impoundments are not adequately addressed.
e. Applicant will destroy Beaver Habitat when it removes the dams.
lssues raised by COLW, D. Arnold, S. Dorsey.
The Applicant responded:
Discussion about the removal of two dams on Deep Canyon Creek began in 2008
when the Resort agreed to that it would remove them. As above, compliance with the
FWMP is assured by the annual reporting of mitigation. LUBA's 2019 decision in Gould
vs. Deschutes Countyfound the removal of the dams on Deep Canyon Creek is required
by the FMP and is not relevant to the review of the tentative plan because the TP did
not alter the FWMP. The same is true of this site plan. See Ex. 8, Liz Fancher letter.
The applicant is not required to fill in the details or provide anything further at this
point to comply with this element of the FWMP. Opponents' claims relating to the
removal of either dam orthe impounding of water are collateralattacks on the FWMP
and should be disregarded and denied outright, including Gould's most recent claim
related to the beaver habitat. Concerns regarding compliance with the FWMP are
properly resolved by the annual review called for by FMP Condition 38.
Furthermore, David Newton, Newton Consultants lnc., the author of the FWMP, has
explained the required timing of the dam removal required by the FWMP (see Ex. e,
Pgs. 10-11). lt requires the flrst dam (the upper beaver dam) to be removed prior to
the start of construction, and the second dam (the head gate along with the BFR
concrete impoundment) is to be removed once the Applicant's pumping exceeds
1,201 acre-feet. At this time, removal of neither dam is required. That being said, the
evidence clearly shows BFR has removed the head gate on its impoundment, allowing
water to flow through their property to the Deschutes River, years before required by
the FWMP and even before Applicant has pumped any water whatsoever. Aside from
providing mitigation far in advance of when needed under the FWMP, the Applicant
is not changing any terms of the FWMP and will assure compliance with its annual
reporting as required.
The Board finds the Applicant is not proposing any change to the FWMP, which calls for the
dams to be removed at points in the future. Further, that while not required at this point,
before it begins any pumping that the Applicant has caused the cessation of pumping of the
Deep Canyon Creek water and the removal of the head gate which impounded the water in
the Big Falls pond, allowing the Deep Canyon Creek water to flow to the river, subject to the
constraints the Beavers reinstall. At this point the Applicant has done more than is required
by the FWMP.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-00088'l-SP Thornburgh Golf Course - EXHIBIT A Page 11 of22
7. Mitigation of lmpacts to Wildlife & the Old Tumalo Canal area (ACEC)
(18.113.070(D).
The Board finds these issues are CMP/FMP approval criterion resolved with approval of the
Wildlife Mitigation Plan (WMP) and the FMP. Further attacks are impermissible collateral
attacks on the CMP/FMP. Also, that issues a-f are not relevant site plan approval criterion. As
it is conceivable these findings will be challenged on appeal, the Board has also addressed
and resolved the arguments raised on their merits below.
Opponent claims include:
a. How is the resort planning to mitigate damage to the eco-system?
b. The decision erred in finding compliance with Condition 38,
c. Opponents disagree the impact is net zero,
d. A new 2020 study needs to be done,
e. Proximity to Golden Eagle nest, must take extra measures in addition to WMP,f. The applicant has not dealt with the Tumalo Canal area of concern, and;
g. The site plan needs to address rock outcrops affected by the golf course.
lssues raised by M.Saslow, N. Gould,
The Applicant responded:
Mitigation of impacts to Wildlife were approved in the FMP by the WMP. lncluded in
that is mitigation to wildlife both on and offsite. The WMP deals with the Tumalo canal
irrigation ACEC, as well as the locations of the rock outcrops. Condition 38 requires
compliance with the FMP and WMP, which included care for the Tumalo Canal and
rock outcrops. Applicant is not proposing any change any change to the terms of the
WMP. ln accordance with the WMP the site plan address rock outcrops and the
impacts to them. Further compliance with the WMP is determined by the annual
monitoring the plan requires. Applicant is not required to fill in the details or provide
anything further to meet this criterion. See LUBA pg. 9 above, and Ex. G, LUBA
Decision. Any further claim is a collateral attack on the CMP/FMP. Also Claims a-f are
not relevant approval criterion.
The Board finds that LUBA has held that the WMP/FWMP, when followed, fully mitigates for
the impacts to fish and wildlife. The Applicant is not proposing any change to the WMP, and
that compliance with the WMP is accomplished via the annual reporting in the WMP. Also,
Applicant's SP 3.1 shows the rock outcrops that may be impacted. This standard is met.
8. Economics - CMP - 18.113.070(C) (14) & 18.113.050(8X19).
The Board finds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. Further they are not relevant site plan criterion. As it is
conceivable these findings will be challenged on appeal, the Board has also addressed and
resolved the arguments raised on their merits below.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 12 of 22
Opponents Claims include:
a. 2005 economic data is not viable.
b. Golf course and lakes are not viable. We do not need more golf.
c. Thornburgh should be required to enter into an agreement to use Eagle Crest golf
courses.
d. We do not need another resort. There is too much competition for same customer
base.
e. Job's and taxes should not be determining factors.
f . Where is the affordable housing for workers who maintain the project?
lssues raised by P. Lipscomb, N. Engebretson, saslow, Deborah, c. Larsen, L. Bakewell,
M. Saslow.
The Applicant responded
Any issue related to viability of the golf course, the need for golf or other amenities,
or the resort as a whole has been resolved in the CMP. The issue of siting golf in the
Thornburgh Resort was resolved in the CMP. All issues related to the economic
viability, the economic benefits the resort produces, and availability of affordable
housing were resolved in the CMP. Further they are not criterion for approval of this
site plan. There is no requirement for the applicant to provide any information on any
element regarding the same. Similarly, there is certainly no code requirement that we
enter into an agreement with any competitor. All of these issues are barred as
impermissible collateral attacks on the CMP and should be rejected outright.
While applicant is not required to do so, it will respond to the allegations as follows.
The evidence shows Thornburgh is hugely viable, that it will provide tremendous
economic benefits to the local economy. Economic benefits, including the creation of
jobs and tax revenue was a criterion for approval of the CMP. ln compliance with the
CMP requirements stated in 18.1 13.070(CX3) applicant retained Peterson Associates
to undertake a complete economic study. The results showed the project would; 1)
create an average of 1,355 direct and indirect jobs annually for the first 1 2 years, 2)
produce nearly $19M in annual tax revenue at stabilization, making Thornburgh the
2nd highest paying taxpayer in the county and: 3) create little demand for public
services resulting in massive benefit to public agencies. For example, annual tax
payments directed to public schools would be about $7.4M while the cost of
educating the few resort kids would only be about $340,000, an annual surplus of
about $7M.
ln the 2006 CMP decision (Ex. 30) the Board found that "even with the loss of re
lands the economic benefit the resort pfoduces will provide an overuvhelming benefit
to the county." As to affordable housing Peterson prepared a comprehensive
housing analysis in 2005 as part of the CMP approval 18.113.070(CX3), which the
Board found acceptable, stating that it was a'substantial report'. Ex.30, Pg. 16-17,
Board CMP Dec.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A page 13 of 22
ln the 2018 Tentative Plan proceedings opponents raised similar concerns to those
being raised here, i.e.: golf, economics, viability, etc. To address those concerns
Applicant asked Peterson Economics to respond. Peterson noted; "Thornburgh will
have an exceptionalgolf course designed by Coore-Crenshaw - clearly one of the
very best "big name" designers, known for designing some of the very finest
golf courses on the planet." In response to a comment that Thornburgh lands are
not very good for a resort, Peterson opined, that "this could be the very best
development parcel remaining in the Northwest". ln response to the proximity to
Eagle Crest Peterson stated, that "although situated near Eagle Crest, Thornburgh
would be positioned to serve a very different segment of the market. As such it
would have little to no overlap....." Lastly referring to comments that things have
changed since 2005 Peterson referred to a detailed financial analysis his firm did in
June 20'18. At that time Peterson concluded "Thornburgh offers potential to
generate very attractive net cash flow going forward exceeding $410 million in
cumulative cash flow...." ln their june 2018 analysis Peterson points to a huge and
expanding customer base, dispelling Lipscomb's implications of a static or stagnate
customer base. See, Attachments 2, 3 and Exhibit 30, Pgs. 15-17.
The Board finds that based on the 2005 evidence and the evidence and expert testimony
Applicant submitted for this site plan, that the Resort is viable, and will provide substantial
economic benefits for Deschutes County.
9. Drainage - CMP 18.113.070(l): CMP Condition 25.
The Board flnds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include:
a. lt's not clear no natural drainages have been identified on the CMp/FMp
b. The decision erred in finding compliance with 18.1 13.070(J).
lssue raised byJ. Kleinman, N. Gould.
The Applicant responded:
The CMP established the drainage plans for the Resort which satisfied 18.113.070(J),
and which are being adhered to in this site plan. Condition 25 required the filing of a
detailed erosion plan with the first tentative plan, which was done. That same erosion
plan was filed again with this site plan. Condition 25 is a filing requirement. lt imposes
no performance standard for the plan, other than it be detailed. lt is detailed and has
been filed. The Applicant is complying with the CMP conditions and any claim is a
collateral attack on the CMP. See Ex. 8, TP Erosion Control Plan.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHtBtT A Page 14 of 22
The Board finds that Applicant complied with this criterion by complying with Condition 25
which required that it file the Erosion Control plan with the initial tentative plan (or site plan,
whichever is first). The Erosion Control Plan was accepted by Hearing Officer Olsen. ln this
site plan, the entrance road is the only element surface drainage occur, so the Applicant filed
the Erosion Control Plan with this application. This standard is met.
10. Waste-Water Disposal - 18.113.070(L): CMP Condition 15.
The Board finds this issue is a CMP criterion that was resolved in the CMP and is a collateral
attack on the CMP. Further it is not a relevant site plan criterion. As it is conceivable these
findings will be challenged on appeal, the Board has also addressed and resolved the
arguments raised on their merits below.
Opponent claims the plan does not comply with 18.1 13.070(L) that its wastewater disposal
plan includes the maximum beneficial use.
The Applicant responded:
The site plan does not require waste-water disposal. Further 18.1 13.070(L) was met
by approval of the CMP (See Ex. 30, Board CMP Dec. Pg. 28.) and is no longer an issue
unless the applicant is proposing a change to the waste-water system - which it is not.
The applicant has a Water Pollution Control Facility permit as required by Condition
#15 which was met prior to the submittal of the FMP. Any further attack is a collateral
attack on the CMP/FMP.
The Board finds the Applicant has satisfied Condition 15 by obtaining a Water Pollution
Control Facility permit. This site plan is not proposing any facilities requiring waste-water
disposal so maximum beneficial use is an irrelevant issue. Nothing further is required now.
11. Traffic and Access - DCC 18.113.050(BX2) & DCC 18.113.070(G): CMP Conditions 4 &
29.
The Board finds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include:
a. Traffic counts are woefully low.
b. Taxpayers are being asked to pay for a roundabout at Cook Avenue.
c. How does a 2007 Traffic approval work now?
d. The Board should require the Cooperative lmprovement Agreement with ODOT
to be recorded.
e. Although Northern access is not included the Tentative Plan drawings show
grades over 10% that are maximum allowed by Redmond Fire.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 15of22
f . Redmond Fire requires southern road to be built now but applicant has no access
permit.
g. The BLM requires extra things over county. No condition of approval requires
compliance with BLM.
lssues raised by N. Gould, C. Larson, L. Bakewell.
The Applicant responded:
DCC 1 8.1 13.050 & 070 are CMP criterion that were met with approval of the CMP and
are collateral attacks. Applicant has done all that was required in the CMP. The
applicant provided a tralfic report compiled by a professional traffic engineer which
was accepted as valid by Deschutes County Road Department, ODOT and the Board.
The report became the basis for negotiations with ODOT for the execution of the
MOU (See Ex.34, ODOT MOU), compliance with which, the Board made a condition
of approval (#29) of the CMP. See. Ex. 30, Board CMP Dec, Pgs. 1 2, 18-22,32. Further
the applicant entered into a Right of way (ROW) agreement with the BLM pursuant to
condition #4.
In compliance with the terms of the MOU, Thornburgh subsequently entered into a
Cooperative lmprovement Agreement (ClA) with ODOT. The CIA spells out the terms
of Thornburgh's $1,125,000 contribution to the construction of the Cook Avenue
roundabout. The CIA has no provision requiring it to be recorded. See Ex. O, CIA
w/ODOT. Further, this claim is not a criterion for approval of this site plan. Lastly,
according to Chris Clemow, Professional Engineer, the background traffic at relevant
intersections was lower than was estimated to have occurred at similar times in the
2007 traffic study. See Ex.35, Clemow Letter, Pg. 6.
Comments regarding the north and south roads were governed by the imposition of
condition #4, requiring secondary access roads to be built prior to final plat approval
or building permits, whichever comes first. This is further clarified and conditioned by
CMP Condition #17 which requires that all development meet the requirements of
Redmond Fire Depanment, including ingress and egress to the site. Redmond Fire
provided an email, Ex. 16 that stated no water or access is required until combustible
materials are arriving on site for a structure. This site plan is not a final plat approval,
or require issuance of a building permit, and will not result in the delivery of
combustible materials for a structure. As such no road or water is required. Further
Ex. 28 is a letter from Redmond Fire confirming 12% grade is acceptable on the
northern access road.
The Administrative Decision required Redmond Fire to certifiT the applicant is in
compliance with them prior to construction, earthmoving or clearing. While this site
plan is not proposing any construction Ex. 16 makes clear there are no requirements
for earthmoving or clearing. The language on page 32 of the staff decision reading:
"Moreover, as required under DCC 18.124.060, the applicant shall provide written
confirmation from the Redmond Fire Department that all applicable fire safety
standards are met; including this development's compliance with the resort's
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 1 6 of 22
Wildfire/Natural Hazard Protection Plan shall be submitted prior to commencement
of construction, earthmoving, or clearing,' should be stricken.
Lastly, condition #4 required that we enter into the ROW. There was no ongoing
condition that Applicant comply with the BLW Row as the Row has its own
enforcement and compliance measures, similar to Condition 38 and the WMp.
Applicant will comply with the BLM ROW.
The Board agrees the language on page 32 should be removed as Exhibit l6: the email from
Clara Butler, Redmond Fire resolves any concerns the county concerns may have and makes
it a moot point, as noted in the Board decision. The Applicant shows it is complying with the
MOU, has entered into a Cooperative lmprovement Agreement with ODOT and is complying
with the related conditions of 4 and29.
12. Fire and Safety lssues are Not Being Addressed - 18.113.070(t): CMp Conditions 4,
19 &24.
The Board finds these issues are CMP criterion that were resolved in the CMp and are
collateral attacks on the CMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include;
a. Property has not been annexed into Redmond Fire.
b. Redmond Fire Department requires the southern access road to be built now,c. The project needs to have back up power to insure fire flow.
lssues raised by T. Bishop and N. Gould.
The Applicant responded:
This is a CMP criterion that has been resolved and these attacks are collateral attacks
on the CMP. The entire property has been annexed into the Redmond Fire district.
The Board made this Condition 24 of the CMP, which was approved in 2008 as is
shown in Ex. 29: Annexation Documentation. The FMP decision determined that
Condition 24 was satisfied. The timing of construction of the access roads was
covered by Condition 4, which stated construction of a secondary/emergency access
roads shall be prior to final plat approval or issuance of a building permit, whichever
comes first. Further, the email from Clara Butler, Redmond Fire, makes clear that no
access or water is required until combustible materials for structures arrive onsite.
see Ex. 15. Applicant has met the standards and was approved in the cMp.
There is no requirement in the CMP/FMP or County code requiring the resort to have
backup power. lf Bishop had a concern about that he should have raised it in the CMp
proceeding. The applicant is going to great lengths to ensure the safety of its residents
and guests (Ex. 30-a, Board CMP Dec. Pgs. 8-10). lt completed a wildfire and natural
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHtBIT A Page 17 of22
hazards plan (Ex. M & Condition 19) and is planning redundancies in its power and
fire suppression systems as described on the Comment Chart, submittedJuly 1,2Q2Q.
The Board flnds the Applicant has addressed all fire and safety issues, that the southern road
is not required now per Condition 4, that Condition 24 was satisfied with the complete
annexation into Redmond Fire District. Also, the Applicant satisfied, and is complying with
Condition 19:Wildfire and Natural Hazards plan. Nothingfurther is required atthis point.
13. Protection, preseryation, enhancement, and maintenance of natural features,
naturalcharacteristics, and natural resources: CMP Condition #34.
The Board finds these issues were raised and debated in the CMP, including under criterion
18.1 13.050(BX1), (BX4), (BX5) and 18.1 13.070(E), all discussed below. These were resolved in
the CMP and are collateral attacks on the CMP. While the issues are related to 18.124.060(8),
which is a relevant site plan criterion the CMP criterion are broader and more extensive than
those of the site plan. As it is conceivable these flndings will be challenged on appeal, the
Board has also addressed and resolved the arguments raised on their merits below.
Opponent Claims include:
a. The applicant "failed to identify the natural features to be preserved",
b. Views and natural features must be identified and located on the site plan with
commitments to how they will be preserved.
lssues raised by COLW relate to 18.124.060(AXB) which is discussed in detail in the
Decision.
The Applicant responded:
These issues were dealt with extensively in the CMP, to satisfl/ numerous code
elements, including:
18.113.050(8)(1). A description of the noturol chqrocteristics of the site ond
surrounding oreos, including o description of resources ond the effect oI the
destinotion resort on the resources; methods employed to mitigate odverce lmpocts
on resources; onolysis of how the overoll volues of the noturol feotures of the site
will be preserved, enhonced or utlllzed in the design concept for the destinotion
resort; and o proposed resource protection plon to ensure thot importont noturol
feotures will be protected ond mointained. Foctors to be oddressed lnclude:
c. Slope ond generol topogrophy;
I. Vegetotion;
h. Importont noturol feotures:
18.113.050(8)(4). Destgn guldelines ond development standards defining visual and
oesthetic poro meters for:c. Preservotion of existlng topogrophy and vegetotion, snd;
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 18 of22
18.113.050(8)(5). An open spoce monqgement plan whlch includes:b. An inventory of the importont noturol feotures ldentlfied in the open
spoce oreos ond ony other open spoce ond noturol volues present in
the open spoce;
c. A set of monogement prescriptlons thot will operote to maintoin ond
consen e in perpetuity ony identified lmportont notural feotures ond
other noturol or open spoce volues present in the open space;
18.113.070(E). ,mportqnt noturol feotures, including but not limited to significant
wetlonds, riporlon hobitot, ond londscope monagement corridors will be
mointoined. Riporlon vetetotion wlthln 100 feet of streoms, rivers and signilicont
wetlonds wlll he mointolned. Alterotions to importqnt notural feotures, lncluding
plocement of structures, is ollowed so long os the overoll volues oI the leoture ore
molntolned.
During the CMP the applicant provided numerous reports and documents relevant to
the above criteria, including: Ex.42: the Natural Characteristics and Geology Report
from Newton Consultants, Ex. 43: the Wildlife and Habitat report from Tetra Tech, Ex.
44: the Open Space Management Plan. The FMP WMP (Ex. 38) is also relevant as it
reinforces details from the CMP. The applicant also provided extensive details how it
would use a concerted effort to preserve and maintain the features and feel of the
property, i.e.: use a light touch in its development activities. That efforts would be
taken to preserve and encourage old growth juniper woodlands, and that rock
outcrops would be preserved wherever possible. The CMP showed the topography of
the site, that the buttes themselves provide the Thornburgh property 700 feet of
elevation change, that the upper elements have homesites fed by single loaded roads
to protect the views of all, and that the golf and lakes are located on the lower lands.
ln the CMP siting golf on the lower reaches enhanced the site natural views adds as it
would provide broad expanses of clearings.
ln the CMP, the Board found that while there are resources worth preserving the site
did not have any important natural features, that tree and rock outcrops did not
qualifiT under the definition. Condition 34 was added to protect open space areas that
had been disturbed. The Board found that Applicant had met all the criterion of the
CMP related to this, which is broader than the criterion of 18.124.060A and B. Any
further attack in this proceeding is a collateral attack on the CMP. See Ex. 30 and 30-
A, Board CMP Dec.
The Board finds Applicant reducing impacts to the greatest extent possible. While there may
not be important natural features, the Applicant has described the extensive efforts to
protect and preserve trees, rock outcrops and topography. Condition 34 deals with areas
outside of the Golf course or lakes that are disturbed and the WMP prescribes actions to be
taken and the timing when those will be completed to restore disturbed areas. The Applicant
is meeting the criterion.
14. Lighting. CMP Condition #31.
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File No. 247:19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 19 of 22
The Board finds the issues were raised and resolved in the CMP and are collateral attacks on
the CMP. Also claim "b" below is not relevant to this site plan application. As it is conceivable
these findings will be challenged on appeal, the Board has also addressed and resolved the
arguments raised on their merits below.
Opponent claims include:
a. All exterior lighting shall be shielded so that direct light does not project off site,
b. The present lighting code does not meet the Dark Sky guideline.
lssue raised by N. Goud, COLW.
The Applicant responded:
It is not proposing lighting here, so the claims are irrelevant. Also, Gould raised the
issue in the CMP that resulted in the Board adding condition (#31) requiring Applicant
comply with Deschutes County code on lighting. See Ex. 30, CMP Board Dec. pgs. 30,
32. This condition was carried forward as a condition of the FMP assuring compliance
with County lighting codes. Further attacks are a collateral attack on the prior
approvals, including Gould's arguments that the Code is not sufficient.
The Board finds this application does not propose any lighting, nor any change to Condition
#31, which requires adherence to the County Code. The Applicant is in compliance with
Condition 31.
15. Population of Bend exceeds 100,000:
The Board finds this issue was resolved at the time of the CMP, and that it is a collateral
attack on the CMP. Further it is not a relevant site plan criterion. As it is conceivable these
flndings will be challenged on appeal, the Board has also addressed and resolved the
arguments raised on their merits below.
Opponents claim resorts are not allowed to be sited within 24 miles of cities over 100,000.
lssue raised by P. Lipscomb, K. Cody.
The Applicant responded:
The issue was resolved when Thornburgh applied for its CMP approval on February
18, 2005, or what the CMP was approved by the County on December 9, 2009. At no
time during the CMP was the issue raised. The population was far less than 100,000
then as it was when the resorts FMP was approved. The argument is a collateral attack
on the CMP, which is discussed in more detail in Exhibit 8, Liz Fancher letter submitted
at the hearing. lt is not a relevant approval criterion.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page2O of 22
The Board notes that as of the date of this decision the official population of Bend is less
than i 00,000 although it is expected that it may exceed this number when the current census
is completed. The intent was to be determined at the time of siting of a resort, which could
have occurred when it was mapped for use as a destination resort, not 15 years after it was
applied for, or more than a decade after the CMP was approved.
15. Tax Lot 7700 is not a legal lot of record.
lssue raised by Central Oregon Land Watch
The Board finds this issue was resolved at the time of the CMP, and further with the legal lot
of record approval (File 247-14-00045-LR) that COLW participated in, which was found
against them. The claim is a collateral attack on the CMP and the legal lot of record approval.
Further it is not a relevant site plan criterion. As it is conceivable these findings will be
challenged on appeal, the Board has also addressed and resolved the arguments raised on
their merits below.
The Appl icant responded:
This is false, as TL77O0 is actually comprised of 6 legal lots of record. This is discussed
in greater detail in letter from Liz Fancher. Furthermore, the issue was resolved in the
CMP and the FMP which ruled all the Thornburgh property were legal lots of record.
As such this is an impermissible collateral attack on those approvals. lt is also a
collateral attack on the lot of record decision which recognized TL77OO as 6 legal lots
of record, that Land Watch participated in. See Ex.15, Liz Fancher letter.
The Board finds Tax Lot 7700 is a legal lot of record, as described in File 247-14-OOO45-LR.
17. Well lndemnification fgreement CMP Condition 11.
The Board finds this issue was resolved in the CMP with the imposition of Condition 11 and
is barred from further claim as a collateral attack on the CMP. Also, it is not a relevant
approval criterion for the site plan. As this finding could be appealed the merits are discussed
below.
Opponents' issues include:
a. how does the well agreements work, and;
b. how was the two-mile radius determined?
Questions raised byJim Guild, and N. Engebretson.
The Applicant responded:
The issues pertaining to the well indemnification agreements were resolved in the
CMP and are barred from being raised in this proceeding. Further this issue is not a
criterion for approval of this site plan. The well agreement on file with the County was
approved during the review of the CMP. Eco: Logic suggested the same distance in
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 21 of 22
the well monitoring agreement, which was approved by the Board. See Ex. 30 Board
CMP Dec., Pg.27. Nothing is required of the Applicant at this point.
The Board finds that the Well lndemnification Agreement speaks for itself. The Applicant is
not proposing any change to the agreement, which requires nothing of the Applicant now.
Applicant is in compliance with Condition 11.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBITA Page22 of 22
EXHIBIT B: IMPROPER REBUTTAT FILED BY OPPONENTS
The following items filed during the post-hearing rebuttal period are improper rebuttal
because they do not rebut to any evidence or testimony by applicant or other party filed
during the first post-hearing comment period and, except as noted, are disregarded.
The Applicant argues:
A. K. Anuta, 7/8120, The materials penaining to a new water permit to store water on
pages 2, 3 and the top of 4 are new evidence, not rebuttal as Anuta claims. On page
2 he refers to Ex. #15, a letter from attorney Liz Fancher where Anuta says "the
applicants counsel specifically notes that the project ... will include a recreational lake
[and] a lake/boating clubhouse...." Ms. Fancher did not say that, or anything else on
the subject. At the hearing the Board asked about COLW's lot of record arguments.
Ms. Fancher said she would respond in writing to those arguments. Ex. 15 is that
response titled "Response to COLW's Lot of Record Argument." The Fancher letter
includes exhibits to support her arguments about COLW's Lot or Record Claims. Her
material does not make any other legal or factual argument.
Anuta, in a footnote refers to Pg. 23 of Fancher's submittal. Pgs. 20-24 are pages #1-
4 of the BOCC CMP 2005 Dec. On Pg.24 Ms. Fancher highlighted Section G: LEGAL
LOT as the portion relevant to her argument. That is the only portion of the BOCC
decision she highlights. For background, the Thornburgh project was permitted as
two separate villages, the Tribute and the Pinnacle (Ex. 15, Pg.22).
Furthermore, the language cited by Anuta does not relate to the part of the Resort
where the golf course and lakes are proposed. This site plan is about the golf course
and related lake in the southern, or Tribute portion of the property. This is obviously
being built as part of Phase A. By contrast, the paragraph on pg. 23 with the language
Anuta refers to begins with; 'The Pinnacle will be located primarily in the northern
half of the property and is planned to include one golf course...a recreational lake....
The paragraph ends with "Most of the Pinnacle development is proposed to occur
during Phases D through F" that does not relate to this site plan.
The Board finds Ms, Fancher's materials respond only to COLWs lot of record arguments
and that Anuta's reference to the BOCC decision page 23 about a lake in Phases D-G are
unrelated and result in a new legal theory. The Board rejects the reference to it and
excludes it from the record. lt is also a collateral attack on the CMP and Water rights
permit that is dealt with in detail in Exhibit A. Further this is not a relevant site plan
criterion.
The Applicant argues:
B. N. Gould 718/20. Ms. Gould submitted rebuttal, and with the exception of Applicant's
comments related to ADA access, did not mention any Applicant evidence she was
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 1 of6
rebutting. To the contrary she refers to numerous other items submitted by others at
various times
a. The first paragraph deals with a variety of issues, including; DSL comments
from January 16, 2O2O, the Wetlands in Deep Canyon and DSL's failure to
mention them, lntermittent waterways on the property included in DSL's 2018
comments, a Jim Guild exhibit showing some of the same waterways, and the
contention that the site plan should include some of the same because of
alleged flooding at Eagle Crest. Referenced in this paragraph are Exhibits A1,
A2, & A3.
b. The 2nd paragraph dealing with Tax Lot 7900 and the COID comments that
COID submitted as Agenry comments when the application was filed. Gould
comments that pertain to TL 7900. Referenced in this paragraph are Exhibits
81, and 82, both of which should be excluded as improperfor rebuttal.
The Board finds these items were not responsive to a submittal by Applicant, are improper
rebuttal and are disregarded. Further, they are not relevant to any approval criterion. The
issues raised in paragraph 1 of page 4 are collateral attacks discussed in Exhibit A.
The Applicant argues:
C. Kleinman 718/20.Applicant highlighted the improper items in Exhibit 47 which include
the following:
a. Page 1, Last paragraph. Kleinman claims applicants claims of collateral attack
simply fail as he has stated before. He also states that "if'Applicant intends to
sneak in an argument of claim preclusion or issue preclusion that must fail
also as the applicant has presented no basis for reliance on those theories. By
Kleinman's own statement Applicant did not raise claim or issue preclusion as
he says if we do. That is not proper rebuttal to anything Applicant submitted
during the open evidence period. Raising the issue of collateral attack is not
proper rebuttal, except as it relates to the lot of record. That was the only
reference to collateral attack in the open evidence period. The other
arguments Kleinman makes about water collateral attacks are not proper
rebuttal. That said, opponents'collateral attacks on water related issues are
discussed in great detail Applicants Exhibit 46: "lmpermissible Collateral
Attacks."
The Board concurs finding with the exception of the lot of record argument that the above
was not proper rebuttal and is disregarded. The Board deals with CollateralAttacks in Exhibit
A.
The Applicant argues, regarding Kleinman's submittal dated 7l8l2o:
b. Page 3: 1't paragraph makes argument how application is inadequate and
failed to meet standards of 18.124. Kleinman failed to state how the following
items fail to meet the standard of 18.124 or specifically what standard he feels
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 2 of 6
are deficient, or how the issues cited below are relevant. Much of the
arguments are based on the site plans submitted with the application giving
Opponents months to comment upon. As noted, with the exception of #2 and
15, the items below are not proper rebuttal but new evidence.
1) SP 2.2 submitted on June 1 7 at the hearing identifies the approximate
location of the entry road on BLM land. Kleinman claims the BLM ROW
is very specific about the location so we cannot use the term
approximate.
SP 2.2 was submitted with the application then again at the June 17,
2020 hearing. Kleinman states it was not submitted during the open
evidence period, so it is not proper rebuttal. CMP Condition #3 required
Applicant to enter into the ROW with the BLM. The Applicant complied
and did so, entering into this ROW. The BLM and the ROW has its own
mechanisms to ensure compliance with the agreement and the County
is not tasked with those compliance matters. Further this is a collateral
attack on the CMP and the ROW.
The BOCC finds SP 2.2 was not submitted during the open evidence period so is not proper
target of rebuttal. Applicant has met Condition 3 as required. We agree the BLM, not the
County will administer compliance with the ROW. As a result, this is a collateral attack on the
CMP. Opponents claim fails.
The Applicant argues, regarding Kleinman's submittal dated 718/20:
2) This is proper rebuttal in response to US Access Board guidelines the
Applicant provided as its Exhibit 17. The applicant states it will comply
with those access standards for the golf course. The application is not
proposing recreational use of the lakes at this time so that is irrelevant.
The Board finds that Applicant will comply with the US Access Guidelines for the golf course
and deals with the ADA issues in its Decision, which includes a finding that the approval does
not approve recreational use of the lakes at this time.
The Applicant argues, regarding Kleinman's submittal dated 718/2O:
3) While Kleinman's claim that the beach slopes do not meet ADA
requirements is not proper rebuttal to Applicant evidence, it is
irrelevant as the Applicant is not proposing recreational use of the lakes
as this time.
The Board finds this is not proper rebuttal but also that it is irrelevant as noted in #2 above
the decision does not approve recreational use of the lakes.
The Applicant argues, regarding Kleinman's submittal dated 718/20
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 3 of 5
4) The issue raised is parking in relation to the distance to existing
residences, stating people are not going to walk to play golf or lug their
watercraft 2 miles to the lake. The comments are based on the site plan
submitted at time of application. Applicant has stated no recreational
use of the lakes is proposed at this time.
This is not proper rebuttal as there was nothing new submitted regarding this. Recreational
use of lake and parking standards are dealt with in the Board Decision.
The Applicant argues, regarding Kleinman's submittal dated 718/20:
Comments 5-14 all relate to the lakes and response is grouped together
following #14.
5) The legend on SPl.1 shows 8 acres of lakes. Other plans only show 6
acres of lakes.
5) The site plans only show 3 lakes, not 2.
7) The large lake is bifurcated with the entry road. A new legend is needed
to show how the/re connected or where discharge is.
8) The site plan does not show how the entry road crosses the large lake.
9) The information on file begs the question of whether abutments for the
road are.
10) The site plan employs imprecise terms such as "approximate".
1 1) The connection between the large lake and small lake, and the overflow
holding capacity of the lower lake is not shown.
12) The applicant does not show or state whether there is an earthen dam,
a plastic liner or something else.
13) The site plan does not show how the lakes are connected.
14)Will any bentonite be used to keep the pond from seeping into the
ground or will a welded membrane like BTL be used? lf plastic this
could compel calculation of evaporation.
Comments 5-14 are all based on the materials and site plan submitted
with the application. They are all new evidence, and not proper
rebuttal. For question 5 and 6 Kleinman answers his own question in
comment #16 below where Kleinman seems to recognize the large lake
is 6 acres and the smaller is approximately 2 acres. The Applicant has
confirmed that Exhibit M includes water amounts that have taken
evaporation into account, in compliance with CMP Condition 10.
Kleinman fails to show how these items relate to specific site plan
approval criterion.
The Board finds these items are not proper rebuttal and that Kleinman failed to cite specific
site plan criterion for approval that they relate to. The Applicants use of the term
"approximate" is dealt with in the Board Decision and given the vast scale of this site plan is
Board of County Commissioners Decision, Document No. 2020-579
File No. 247:19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 4 of 6
acceptable as noted in the Decision. Water for evaporation is included in Exhibit M. Some
of these items are details that will be shown in the construction drawings for roads
previously approved. The Board does not find any of these are criterion required for
approvalof the site plan.
The Applicant argues, regarding Kleinman's submittal dated 7l8l2o
15)Responds to materials Applicant submitted in open evidence period
pertaining to the ACEC and the old Tumalo Canal.
The Board finds this is a collateral attack on the WMP and is dealt with in Exhibit A.
The Applicant argues, regarding Kleinman's submittal dated 718120:
16) SP shows a 5-acre lake on the southernly portion of the large lake. Does
this refer to the southernly portion of the large lake? (See comment in
#5 above).
The comments are based on application drawings not on the open
evidence materials submitted by the Applicant and is improper
rebuttal. in. Further it is not a relevant approval criterion. As noted
above Kleinman has answered his own question, that yes this is the
southern portion.
The Board concurs and finds this is improper rebuttal, and that it is not a relevant site plan
criterion.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
17) SP3.1 does not show any of the rock outcroppings between Cline Falls
Rd. and the entry gate. Site plan should show what will remain after
construction.
The comments based on drawings submitted with application not
during the open evidence period. lt is a collateral attack on the CMP
and the WMP which specifiT the treatment of rock outcroppings. And,
on SP 3.1 the Applicant provided details of all rock outcroppings that
could be affected in compliance with prior actions.
The Board finds this to be improper rebuttal, and also collateral attacks that are dealt with
in Exhibit A. Also the Board finds SP 3.1 to comply with previous standards.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20
18) Because of the hashed area in the west golf area it's unclear what this
means. What is it?
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 5 of 6
This is based on drawings submitted at time of application and is new
evidence not rebuttal. ln response to the claim, the legend on SP4.1
shows the hashed areas are added open space.
The Board finds this is not proper rebuttal, but more importantly SP 4.1 shows the area in
question to be open space as Applicant is required to show.
The Applicant argues, regarding Kleinman's submittal dated 7l8l2l
19) The claim is that the JWRO-K area or rock outcropping shown on the
site plan drawings do not show the impact of stormwater retention
areas abutting the entry road.
This is based on drawings submitted at time of application and is new
evidence not rebuttal. As noted in #17 above this is a collateral attack
on the CMP/FMP/WMP. Further rock outcroppings are shown on SP
3.1 in compliance with previous approvals.
The Board finds this to be improper rebuttal, and also collateral attacks that are dealt with
in Exhibit A. Also, the Board finds SP 3.1 to comply with previous standards.
The Applicant argues:
D. MelStoutTlSl2O:Theentireemailisdisregardedasnotrebuttaltoanythingapplicant
submitted but new evidence, based in part, according to Mr. Stout on comments
made by Yanry Lind in a Bend Bulletin article, which is not in the record. Further the
arguments Mr. Stout makes are collateral attacks discussed in Exhibit A. Further he
fails to show how his arguments are relevant to any approval criterion for this site
plan.
The Board concurs.
The Applicant argues:
E. Don Barber,7l8l20.The entire email should be disregarded as it is not proper rebuttal
but new evidence. The issue pertaining to the water and well indemnification
agreement is a collateral attack dealt with in Exhibit A. Further Mr. Barber fails to cite
to any relevant approval criterion for this site plan.
The Board concurs.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 5 of 6
EXHIBIT 2 LAT OF RECORD
ffimffinsffi rurn$t3r ffi eqreEspmemt ffiepmr#mtem*
Plannlng Oivisi*n Building $a{ety BivlslEn Envifonrnenl'rl Scils Divl$lon
F.fi, l3cx {i{lfis 117 I'iW Lafavsti* A';xnu,r Bend, fireg*n $77il$-6Cr(15
154 1)3flri-$575 t-AX {iFrr1}385-1?S4
http :,f wrtvi ;cil. d rs{tlut*s.or', rtslcdc/
{\Iarch 1$, ?0J5
Central Land and Cattle Company, LLC1
Post Office Elox 553
Redmand, 0regen g77SS
RE: File F{s, 247-14-$SS450-LR; I-ot sf Record Deterrninatlsn for Praperty
ldentified ein Sesshutss County Assessor's lMap trS-t?-0S, Tax Lots 7700
and 7?01
Dear.A.pplicant:
You submitted an application for a lot of record cJetei"rnination for tite abcve referenced tax lot.
The Planning Division has reviewed the information you subnritted r,.iith the applicaiiorr along
with Federal larrd conveye.nce rscsrds; Sorrnty A$sessor's records, County $urveyor rsoord$,
County Clerk deeds, and, County'building an.C land use perrnit information.,z Baseel on this
:inforrnation, we have determined the subject property, consisiing af tw* tax lois as iisted above,
censtitutes six {E) iegal lots of recoi:d.,
Sectisn 18.S4.030 of ihe Deschutes County Zoning Orclinance defines a "lot of recerd" a$:
,4. A irf or p*rcef af leasf 5,0SS sq{rare feef in area snd af ieasf 5S feef wirle wilrcfi
cor?fCIr,ff?ed [o a{f e+ning and se'rsdiyision or partifion reqrut?ernenfsr ff ony, in e#ecf on
ffie dafe tfie fei{ or: parcel w*s sreafed. *nd wfifufi rvas sreafed by any of #ie foflowfilg
rnean$"'
7 " By pa#lffon,rng dard as defrned rul OR$ 93;
2. 8y a subdfvrsion ptrati a$ defir?ed t$ ORS 93; filed wffh ffip Fescf?ufe$ Corunfy
$:rrveyorEndrecorded wiur ffre Desciiufes Co$nfy Clerk;
S. 8y deerf or confracf, dafed and srg*ed by ttre parffes fa fhe frartsacffon, confafnfngt
s $spafldfe fegal deseripfdon of fhe fof sr parcef, and recorded fn Descfiufes
Connfy ffrecordfng of ffte insfl,rnrenf was requirerJ on the #ate of ff,te conveyanre.
Jf suctr insfrumemf confafr s t?reite f&an one fegaf desclrptfon, onty one fof of record
sfiaff be recognrzed unless ffie legaf descr;rfi*ns descrf$e lefs sub;ecf fo a
recordsrt ssbdfvrsion or town pfat;
*:-;: ''..#.lrllli....-.....-.r-...rr.
' The prope*y awner is Loyal l-and Corirparry. 'i'he arpplicant, Csnirai Lalc and Csttle Cofipany, LLC
{Kameron Del.ashnrutt}, signeci on behali of the ltropett,r' owner. Karner*n Delashmuit is€s authorized
by the owner to sign on its bshaif. The signed autiroii;ation is iilciuderi ir the re.:orcl f*r the lot of record
flPFlication.' The land use lristr.iry includlng pasi applica'rions and Ccurriy apprr:vals nray rroi have b*en reler,'ant in
this lat of rccold det*rtnination.
1
{^h t n I i I t t {rrrrrdroc i}r'rfhn*rr'rf rrri lJl Prir*"
EXHIBIT 2 LOT OF RECORD
4, Sy a fown pfat filed wi*Il fhe Fescflerfes CsdJnfy Gfer* *nd recorded fn ffte
Sesch$fes Sounfy Record of Pfafs,; or
$. Sy ffre s#bdfvfdfng or parfitfoning af adjacernf or sfin-s{rnding Jand; Jeavr:ngr a
rsm afirder lof 'o.r parcef"
S, Ifte feffowfng sfiaff nof Se deenred fo be a fof of reeord;{, S tof or parcetr creafed sofeJy by a, fax :Cof segrega#or? See*uEe of an assessor''s
reiif cfiange or for ffie convenience of ffte 6ss $son
2. .S iCIf orparcel creafed by an in{ervenrhgr secffCI$ or fownsfirp fine or rfgfif of wey.
3. A tof or par-cet creafed Sy ar,! $$r€eprded ss&divisfon, unless ffte fof or pareel was
conveyed subJ'ect fo SCC f8.04.S$CIfgj.
i8. A parcef creafed b31 f$e foreefossre of a securffy rnforest,
Deschutes County aciopted its first zoning ordinance ipL-S) on Novernber 1, 1S72. which
clescribed minimurn lst $iue$ for new parcels. This zoning ordinance rryas replaced in 'i979 wilh
Fl--l5, The su's-riivis'ion er,dinance of 1970, PL-Z, regulated *ubdivisiens less than 10 acreg in
size but did not regulate partitions. The partition ordinance {PL-I) was ndopted in 1$77. wlrich
described tlre criteria unEier which pancels coutd be p:artitioned idivided).
LanO UsE History and Public Cornrnents
The subject property and other: propertles in the area incluqle a detailed ar'rd controversial land
use history in regards t* the potential development of the Thcrnburgh Destinatian Ressrt.
Based on this land use history, on January S, 2015. Central Oregon Land Watch (CCILW)
subrrritted a written cornrnent, whioh is included below,
fanrlWafcfi does nof beijeve ffiaf fhese applications for /of of record deferrnrlaftons a,e
conrp/efe; b1/e di-ragree r.vifh ffre infe4yefafiein that s*Ssequent,canueyar-rces do nnf
cCIr?.sCIlr'r/efe Jeefs and beffeve ffiaf pesf appllcnfions anrJ counfy approvals oll filis property are
rhc$ns"rsfent with fhese piroposer/ defernrinaflons. Ifte record ls iiteoneplefe as ri fails to
explain fhe fuli iiisfory of fhese properfies. Further, the property ovvner fias nof srgned fhese
app*L-adrelns alrrJ ffiere rs no offaclred JetfeJ.frorn flre awner autltorurrg any ofhor s$nafure.
The praporprocedure f,crpn#ilronrng of fhese land.s is p,.ouided tn Titte 17.
ln the event ihat this decision is appealed, staff recommends ihe Hearings Bociy review the
issues artdressed here.
Tax Lot 7T$S $ilstnry
The follouving infarrnation is a sequential revielv of land conveyanses in tlre area involving the
sub.iect property, tax lots 7700 and 7701 of rnap 1$-12.$S {index nrap}. For reference. Figure t
shows the tax lat ist its current configuratlon.
Figure 2
For the ten years between 191CI and 1919, five land grants were conveyed in the area. The five
land grants were datecJ and slgned by the pariies to the transaction, containing a separate'legal
de*cription of the parcels, and eventualty recorded in Deschutes County. The first of these
federal csnveyafice$ was from fillarch ?4, 1910 when 1S0 acres was conveyed to George W:
Hinshaw in a Urrited States land grant {Patenl hlumber 12SS54) and later recorded in Volume 1
of Patents, Page 505 et the Eeschutes County Clerk's Office. This parcel is illustrated as Parcei
A on Figure ?. Parcel A is describec! as the northeast quarter (t\tE %) ilr Section 28. Township
Page 2
2
247-14-00045CI-LR. CentralLand & Cattle Company, LLC
EXHIBIT 2 LOT OF RECORD
15 $orith, Range 12 East of the Willamette lvleridierl. This unit of land {Parcel A) is recognized
as a legal lot of record.
Through a U.S. land grant dated April 20, 1911, 100 acres wa$ eonveyed to John T. Park
{Fatent Nurrber 1.92SS4) and later reeorded ih Volurme 22, Fage 437 at the Deschiltes County
Clerk's Office. This parcel is illustrnted as Parcel B an Figure ?. Parcel B i* descr,ibed as the
n6rthrvest quarter ot the scutheast {NW 1z; S,E }/*) end the southvrest :Quart€r of the northwest
gu*rter {SW 7a t\lW }4.'} of $ection 28 and the northeast quarter of the ssutheest quarter iNE %
SE lra) and the southeest quarter of the nontheast quarter {SE }/o hlE }4} of $ection ?9; Tov'rnship
15 $outh, Range 1? East of the Willan:rette Meridiar:r, Th,is unit sf lanql {,Parcel S} is recognized
as a iegal lot of recard,,
On l,{ovennber 3, 191S, 1S0 acres was conveyed to the Heirs of Hanneh M. Anderson in a U,S.
land grant (Patefit Number 55?951) and later recorded in: Voltsme 34, Page S0S at the
Deschutes County Clerk's CIffice. This parcel is {lltrstnated as Farcel C on Figure 2 and is
described as the east half of the southeast quarter iE % SE %j and the southwest quarter of the
southeest, quarter: (SW 1/e SE y") of Section ?0 and the northwest quarter ef the nCIdhea$t
quarter (NW y, fqF y;) of $ection ?$, Township 15 South, f?ange 1? Fast of the Willamette,
Meridian. Parcel C is recognized as a leEai lot of record.
As noted in Patent i{o. S84417, the United Statee csnvey€d 160 acres to Erton Fielding on June
s, 1919. Th:ib land grant was later recorded at the DesChutes County Clerk's Office in Volurne
28, Page 165. This parcel is iliustrated as Farcel D on Figure 2. Farcel D is describ*d as the
southw-est qua*er of the southwest quarter (SW % SW li;) of $ection 21, tlte north half sf the
norlhwest: quarter {N .,7e NW }1c) of $ectisn 28, and nsrlhea$t quarter of the nor,theast quarter
(NF /a l',|:F 7a) of $eclion 29, Township 15 South, Range '12 East of the Willamiette Meridian.
This unit of land (Parcel DI is r:ecognized as a legal let sf record.
On August 11, 1919, 1S0 acres wns conveyed to Rosetta Wells in a U.$. land grant iPatent
,hlrlmber 7S2274) and later recorded in Volurne 32, Fage 12S at the Lleschutes County Clerk's
Office, This parcel is illustrated as Parcet E on Figure 3. Parcel E is described as the southeast
quarten of the nadhwest quarter {SE % hlw yr), the northeast quarter of the southwest guanter
,{lriE % SW 1/a), and tl"re north half of the southeast uuarter {N 7r $E ?i) af Section ?8, Township
15 SorIh, Range t2 East of the Willarnette hiler:idian. Tn'is unit of land (Parcel E) is recagnized
as a legai iot of recurd,
Figures 3 and S
CIn March ?9, 1949, Jack $humway conveyeel to Chloe E, Bryant several tracis of land that
inclucied the those ar€as of Farcels B, C, and D tlrat ars lscated in Section 29 as sliewn on
Figure 2. This parcel is illustraied as Parcel F on Figure 3, The Warranty Deed was recorded in
Volnme 89, Fage 467 at the Deschutes County elerhrs Office. Because of the 194S
conveyance, []arcels B, C, and F were separated. The western hslf of Pol:cei S {Fig. 2) was
separated fronr its eastern half i8$ ncres) in $ection 2S, leaving behind a reffillant parcel with
legatly established bour:rdaries. The southern 40 acres of Pareel C {Fig. ?} was separated fron'l
in $eetion 29 was separated ftorn the 120 acres ltcatecl in $ections 21 and 28,
On January 39, 1$57, Jack and Sar*h Sltuntnray conveyed to Everett W. and Eva S.
Tlrornhurgh several tracts of land that included thase areas of Parcels C and D that are located
in $ections ?0 arrd ?1. Tl'ris par:cel is illustrated as Fai'cel G on Figur'e 3. The Warranty Seed
Page '
3
24.7-14-000450-LR, CentralLand & Cattle Cornpany, LLC
EXHIBIT 2 LOT OF RECORD
was recCIFdeci in Volurrne 11,8, Fage 15? at the $eschutes County Clerk's Otfice, Tha result of
the 1:957 conveya0ce separated the northern 4CI Rci:ss af Par,cel D (Fig. 2) located in Soctfon 21,
leaving behind a remnant par:celrvith legally established boundaries.
The rernainder parcels, shown as Farcels H,; J, K, ahd L, that result fronn the 194,9 and 1957
conveyances are itlustrated on Figure 4. Parcel H is described as the northwest quarter of the
sauthiast (NW % $E irr) ind the southwest quarter of the northwest quarter ($W y4 NW %) of
$ectian 28, Townslrip 15 $outh, Range 12 :East of the \{Jillarnette_ Merid,ian. Psrcel J i$
descrlhed as,the nortli half of the no*hw:est qr,rader {l$ }l NW yi of Section ?8, Toivnship 15
$ourth, Range 12 East of the Willanre$e Meridian. Parcel K is described as tlre east half of the
southeast quarter tE 14 $E 1i'a) and the southtruest quarter cf tlre southee$t quarter tSW % S'E ,6)
of Section 20, Township 15 South, Range 12 East sf tl:re Willamette lVleridian. Parcel L is
deser:ibed ao the soutlrwest qua$er of the southrvest quarter {SW% S\ryX} oJ $ection 21.
Township 15 $outh, Range 12 East of the Wilianrette Mericiian. Parcels l{, J, K, and L are
rec$gniaed as separate legal,lots sf record as discussed belotry,
Figure S
CIn Aqgust 30, 1S77, Everett and Eva Thornburgh conveyed to Key TV lncorporated four tracts
of land-{Val. ?58, Page 1$S). CIne of the four units of tand was sepsrated fronn PArce,l K shown
on Figur,e 4. This unit of land is shown as ParceJ.lVl on FigureS a.nd j$ approximately one (1)
CI$rer At tfre time of the 19?7 carlveyancp to Ke1' TV lnc., the trand partition ordinance PL-7 was
uued tCI regulnte all partitions. ln additien, the zoning ordinance Pl--S regulated nnlnimutvt lot
sizes, l:n:1,977, the subject prr:perty was zoned Exclt-rsive Agricultura:I, A-1, which had a S'acie
r:rrinimurn lot siee,. The subject proBer:ty did ncrt receive the benefit of an approval tor a partition
CIr sutbdivision and dici not meet the minimum lst eize forthe aone. Parcels M is nat recognized
as separate,le$al lot of reccrd.
Lot of Record Analysis
The applicant applieci for verifieation of lo(s) ef reesrcJ under Deschutes Coulty Cac{e {DCC)
18.04S.b30{A,}, which is elefined above, The applicant provided a conrplete appl,lcation
regarding,tlie :history elf the parcel creaticn, which allovved statf to re,nder a decision where only
lot-s or parcels iegally created *re recognized by the Gounty fordevelopment purpsses. Basecl
on the sequential conveyances of land, staff finds the suhject property (tax lots 77$0 and 7701)
ssnstitute six ueparate legal leis of record, The six legal lats of record are shown an Figure 6,
The noted legal lots of record are *ll at le:ast 5,000 sq:Uare feet in area and 50 feet rryide. [n
additien, the sequential land conveyanses for atl properties soctli:red prior to the Countltfs first
subdivision onlinance and zoning or,dinan*e {1970 and 1972, respectively). Since the applicant
is not seeking to divide the subject properly, the pr:oeedures set forth in the current county
subdivisio,n oi:dinance, Title 17, are not applicable. The 1977 conveyanoe of Parcel M shown on
Figure S is an exception. This p:arcel is not recognized as separate legal lot of record because
the partition and zoning ordinances were in effect at the time sf the 1$77 sotlveyance.
Two legal lots of record, Parcels 1 and 2 on Figure 6 were esiablisheel with disorete baundsries
irr +tittrint rjon\rnvll|irlrls f.r*nr: :l$J,:lil antl 1$'llS,, xsrsFsrltivsly. :[h*sp p{tt{.1$!-q hxv+ tenttineel
unchanged since 1$1CI ancJ 1S19. Parcels 3, 4, 5. arrd 6 on Figure 6 were first established with
discrete bounclaries through three separate federal conveyances but were clranged through two
subsequent conveyances. The subsequent csnveyances in 1949 and 1957 sepatated the
parcels, leaving rernnants of the parent parcels. Although a subsequertt deed from 1977
conveyed one unit of I6nd, Parcel M as shown on Fig, 5, it is not recognized as a legal lot of
Page 4
4
247-i4'.000450-LR, *entrai l.,and & Cattle Company, LLC
EXHIBIT 2 LOT OF RECORD
recor,d. Therefore, Parcel 5 is recognized as a legal lot of record using the initial discrete
boundaries frorn the 1916 conveyance.
Most of the parcels reviewed here were inclurded in subsequent deeds that described adjacent
:lands together in a single deed, including the parcels in a single deed does nqt eradicate the
,boundary linee that leg:alltr1 established those proBerties in the past. Evidence wa$ not fsund
that indicated the subject legal lots of record were s*nsolidated through: a property. line
adjustnrent approval or platted as part of a eubdivision or :partitiorr. ln ,the decision [-R-10-t (A-
1CI-3i and in LR"g2-43, LR-S2-44, LR-,92-46, and, LR-92-47, Descfrutes County l-learinEs
Officers found that the mere incl:usion in a single deed cf rnultiple parcels lawfu,lly created by
conveyarrses did nat r,esult in: the eradication of the parcel$' previous legally established
boundary lines.s
:Furthermare, the remnant parcels {Parcel 3, 4, 5, and 6, FiS, S} were first established as separete
:lar.ger. parcets wittr legally established l:eundaries, and were sunounded hy legally established
boundaries of other paroels. Although the r^emainder parcele left liehind does not meet the strict
definitlon conteined in DCC 18.040.03CItAx5) because the adjacent or sur:rounding lands have not
been subdivided or partitioned; $ncs altere.cJ hy subsequent convreyanses it becomes a legal
remainder parcel^ ln decision LR-10-2 {A-10-3), the County Hearings Officer articulated that
renrainder lots are suroundbd by le$ally, crea{ed lots, $taff finde this determination is reasonable
in this instance for all parcels consiciered a remaincjer parcel.
The subject property is eoned ENclusiVe Farm,Use * $ister$JCloverdale subeone {EFU$C) and
Bestination Resorts (DR) Any developnrentt of this propefty, is suhject ta the requirementr of
Tjtle 18, Deschutes County Zoning Orciinance,, Development of this praperty is also subject to
the requirements of the County Building and Envinonmental $oils Divisions.
This decision heconteE final twelve {12} days fronr the date this decision is rnailed unless
appealed by a party of interest
$incerely,
a
Synthia $miclt, Associate Planner
Enclosures
t On Fehruar.y 2, 201:5, tlre eppli*ant's attr:rney, Llz Fancher, subnritted the foll+r,ving commettts.
OR$ 92.{}tZ 6:rofe,cfs nisfonc iols creaied by deeds (as wellas Jols and parcols created by parfdinns
ancl suscliv,sltrts) frurn i;elng c'onsoiidafsd due fo eanlffion ow'ners,h1p. flRS 92.01 7 pror;rdrs ffiaf a '?ol
nrparcel larntf$ly crealed sfoa# ,"s,'neln a dlscre,ie lot ar parcel, rnJess fhe lof nrparceJ /lnes are vacafeC
nr flis lof or paruel rs furfher tiivided, E;,s prourcf*a by lar.r. " Atliimafn B actibn fo eliminats Jol bo#ndar,'s$-' bf ptaftiriS, Iof f,tre cansolica$onb or ilirougil vanalr'*n proceeding"s is reguired Weysrfiaeilser Real
Fslafe Seveloprnenf Co. r,,. Poik Cctinty, 246 Ar App 5A8 ft01li{reconfed partition pl*i a;.rproued undsr
IBw rh effeci la eady 1983 vacaled hlbforib lat iliies for lofs shov'rn nri pa,4rTr'on p/af; cliscrisses offtBl
rne€n$ of etkninating /ct iines olfierwse profeefed by SRS 93.017j: Kistrpaugli r. fiiackaffas Cr:unfy, 24
Qr LTJBA 164, 172 if 9t)AlfORS 92.017 rcql,',,ies coun$e.q fo recognire lavvfully creaied bfs and parceis
'r.rnfiJ somo ecfion ls taken fe erese th* lawfuliy-Bsfablahed praperty lines,"). fo abfe, Bo aofrons lrhal
ucrnsolidals lel irnes have accuned an the su,b.1'er:f properfy.
Page 5
5
247-14-0CIC45S-LR, Cenhal Land & Cattle Company, LLC
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EX. 3: BFR PINNACLE MEMO 20210428
AFTER RECORDING RETURN TO
Pinnacle Utilities, LLC
2447 NW Canyon Dr.
Redmond, OR 97756
MDMORANDUM OF AGREEMENT
This is a Memorandum of that certain unrecorded Purchase and Sale Agreement for Water
Rights (including ail amendments and addenda thereto, the "Agreement") dated effective
Febiuary 13,2019, between Pinnacle Utilities, LLC ("Buyer"') and Big Falls Ranch Co.
("Seller"), encumbering portions of the real properly in Deschutes County, Oregono described in
the attached Exhibit A (the "Property").
The Effective Date of the Agreement is February 13, 2A19, and the Agreement expires on June I ,
2021 unless sooner terminated or as may be extended up to December 1,2A22, pursuant to the
terms and conditions of the Agreement.
Buyer has the right to purchase certain water rights associated with the Property as set forth in
the Agreement.
Seller has recently transferred certain water rights associated with the Property from a surface
water point of diversion to groundwater points of appropriation. Upon the effective date of the
Agreement, Seller has agreed to cease diverting surface water from Deep Canyon Creek subject
to the terms and conditions of the Agreement.
This Memorandum is not a complete summary of the Agreement. Provisions in this
Memorandum shall not be used in interpreting the Agreement provisions. in the event of a
conhict between this Memorandum and the unrecorded Agreement, the unrecorded Agreement
shall control.
IN WITNESS WHEREOF, the parties have executed this Memorandum onn+9.2oLl ,
SELLER: BUYER:
4*,zl
BIG FATLS RANCH CO.,
an Oregon corporation
By:
Rex . Barber, Jr.,
PINNACLE UTILITIES, LLC,
an Oregon limited liability company
Ufi,
B
INOTARY PAGE FOLLOWS]
i01 6350a041042?33;2)I -MEMORANDUM OF AGREEMENT
EX. 3: BFR PINNACLE MEMO 24210428
STATE OF OREGON )
) ss.
County of Deschutes )
' ti, instrument was acknowledged before me this 21 day of
Rex T. Barber, Jr., as President of Big Falls Ranch Co'
OFFICIAIsTATP
OOTrcRPBCK
NOTARY PUBLIC{REGOIIcottillssloil ilo.100t3aa PUBLIC
STATE OF OREGON )
) ss.
County of Deschutes )
ihis instrumentwas acknowledged before me this t-day of
Kameron Delashmutt as Member of Pinnacle Utilities, LLC.
C
PUBLIC FOR
6rc*J,E-
FOR OREGON ,C ?e clc
G re].;'l"na C
OREGON
7.rk
tf i | 2ozt,bv
illL
202l,by
ORETCHEII OOIIIERPECK
NOTARY PUBTIC-ORECOII
coHHl$gloililo.l008g22
{0 163s040{1042733:2i 2.MEM ORANDUM OF AGREEMENT
EXHIBIT ALEGAL DESCRIPTION OF PROPERTY[attached]{0r63s040{10a2?33;2} EXHIBIT A TO MEMORANDUM OF AGREEMENTSZVOTZjZ Ol tSt/\l SlCVNNld UJ8 :e 'X3
EX. 3: BFR PINNACLE MEMO 20214428
4ol 53
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0199&2017 AgWarg Page
,Litg.qlDesdrFili6.h:6.6nt*
p, @ri,i .
EX. 3: BFR PINNACLE MEMO 20214428
@199&20:17 AgWare,Page 15 of 53
I /r
.,.:.t vrsrroR LoDc
iffi coMMERcTAL
RESIDENTIAL
VISITOR ORIEi
RECREATIONI
INFRASTRUCT
OPEN SPACE
OPEN SPACE
(GOLF / WATEI
POTENTIAL C(
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:
EXHIBIT 5 TP A-1 HO OLSEN DEC. EXCERPTS
HEARINGS OFFICER DECISION
FILE NUMBER:247-18-000386-TP / 454-SP t592-MA
APPLICANT/OWNER: Central Land and Cattle Company, LLC
ATTORNEY:Liz Fancher
REQUEST:Tentative Plan (TP) for Phase A-1 of the Thornburgh Destination Resort
subdivision, Site Plan Review (SP) for associated utility facilities
including a well, well house, pump house, reservoir, and interim
subsurface sewage disposal system, and a Modification of Application
(MA)for the Site Plan Review.
STAFF CONTACT:Jacob Ripper, Senior Planner
HEARINGS OFFICER:Dan R. Olsen
This decision adopts and incorporates the Staff Report with minor edits and except as noted by
"Hearings Officer".
I. BASIC FINDINGS:
LOCATION: The proposed Thornburgh Destination Resort is large and is comprised of
numerous tax lots. The lots which are subject to this application are in the southern portion
of the destination resort are denoted with a (*) below.
Map Number & Tax Lot Address
1 5-1 2-5000 1 1800 Eagle Crest Blvd
1 5-1 2-5001 1 1810 Easle Crest Blvd
15-12-s002 11820 Eagle Crest Blvd
15-12-7700*67205 Cline Falls Rd.*
15-12-7701 67705 Cline Falls Rd.
15-12-78AA*67555 Cline Falls Rd.*
15-12-7801*67525 Cline Falls Rd.*
15-12-79A0*67545 Cline Falls Rd.*
1 5-1 2-8000 67400 Barr Rd.
B.LOT OF RECORD: The property subject to these applications is comprised of multiple lots of
record. See file numbers LR-91-56 (tax lot 7800, one lot of record), LR-98-44 (tax lot 7900, one
lot of record), and 247-14-000450-LR (tax lot77A0, four lots of record).
A.
1
Mailing Date:
Tuesday, October 30, 2018
24748-A00386-TP/454-5Pl592-MA Hearings Officer Decision
EXHIBIT 5 TP A-1 HO OLSEN DEC. EXCERPTS
Both parties reference the "corrected Phasing Plan and Overnight and Density Calculations Chart"
submitted with the FMP Burden of Proof which apparently represents the chart adopted under
condition 37 of the FMP approval.
The applications at issue are for 192 RSF lots, 24 single-family deed restricted overnight lodging lots
and 13 lots for overnight lodging units, together with roads, utility facilities lots and tracts for future
resort facilities and open space. They are located generally in the area shown on two maps
referenced above. The applicant states that the 37 lots will provide "about 1 10 overnight units." The
applicant proposes to bond for 40 additional overnight units. The ratio of RSF to overnight units will
drop from 2:1 lo 1.28 to 1 for Phase 'A'. The TP provides about 341 acres of open space out of a
total of 514 acres in this "phase". The applicant states this is 66.340/0, which exceeds the 50%o required
by Code and the 66%o open space for the overall development shown the Open Space Plan, FMP
Exhibit A.1.1. The applicant asserts that the primary difference between the FMP and this TP is the
el imination of severa I cul-de-sacs.
ORS 1 97.445 states that overnight lodging units may be "phased in" with at least 50 units
constructed prior to the closure of the sale of individual lots or units, 50 more constructed or
financially guaranteed within 5 years of initial lot sales and the remaining 50 within 10 years. Units
financiallyguaranteed must be builtwithin 4years of the date of the guarantee. At least $7 million
be spent for on-site recreational facilities and visitor-oriented accommodations. ORS 197.465 states
that for phased development "developed recreational facilities", "key facilities" and "visitor-oriented
accommodations" "intended to serve a particular phase shall be constructed prior to sales in that
phase or guaranteed through surety bonding."
DCC 18.113.060 imposes minimum requirements on the "first phase" and that the "accommodation
ratio" be maintained "at all times". lt requires that "visitor-oriented eating establishments for at
least 100 persons and meeting rooms which provide seating for at least 100 persons" be
constructed or financially assured prior to closure of sales, rentals or lease of any residential
dwellings or lots. "Cumulatively and for each phase" at least 500/o must be dedicated to permanent
ITEM Phase
A
Phase
B
Phase
c
Phase D Phase
E
Phase
F
Phase G Totals
Residential Single
Family (RSF)
300 150 150 125 125 50 50 950
Hotel Overnight 0 0 0 50 0 0 0 50
Residential
Overnight
150 150 0 63 62 0 0 425
Net Overnight 150 150 0 113 52 0 0 475
Cumulative RSF 300 450 500 725 850 900 950 950
Cumulative
Overnight
150 300 300 413 475 475 475 475
Ratio
RSF/Overnight
2.00 1.50 2.O 1.75 1.79 1.89 2.00 2.00
247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 21 2f 81
EXHIBIT 5 TP A-1 HO OLSEN DEC. EXCERPTS
open space. "Each phase, together with previously completed phases, if any, shall be capable of
operating in a manner consistent with the intent and purpose of DCC 18.1 13 and Goal 8."
The Board CMP decision CU-05-20, readopted in relevant parts on April 9, 2008, and consistent with
the prior Hearings Officer decision, recognizes that "there will be some fluidity between and among
development phases, depending on market demand, weather and economic conditions." (Page 2)
On page 46-48 it states that "The 2:1 standard will be met of the end of each phase of development
and at the end of full development" and "will be enforced during the construction permitting
process". The Board read DCC 18.113 as not requiring specificity, but only the general locqtion of
proposed development uses. (emphasis in original) Under DCC 118.113.060 "the applicant will
comply with the early investment requirements for visitor-oriented lodging and visitor-oriented
eating and meeting rooms...prior to closure of sales, rental or lease of any residential lots...at any
stage in the development, the phases completed to date will be capable of operating in a manner
consistent with the intent and purpose of DCC 18.1 13 and Goal 8."
This appears to be consistent with the Hearings Officer decision which states that the resort will be
developed in seven phases (A-G) but that'significant flexibility is required in the scheduling and
phasing of improvements" to accommodate changed conditions "beyond the control of the
applicant." p. 21 lt notes that "some commercial and recreational facilities at the resort may be
deferred until the resort population warrants their construction."
M-07-A2, MA-08-6, the original FMP approval is somewhat unclear in that under DCC 1 18.1 1 3.090(l)
it appears to conflate the "Residential Development Plan" which outlines the number, size and
general location of residential development (FMP Exhibit G.1.1b) and the FMP phasing plan FMP
(Exhibit #8.1.08) The Hearings Officer noted that the "applicant proposes to submit a more precise
layout for each lot through subsequent subdivision applications." The FMP states that the applicant
has submitted the corrected Phasing Plan and Overnight and Density Calculations chart with the
FM P. That appears to be the chart set forth above and the Phasing Plan identified as Ex B-1 .08.
As the applicant notes, the Phasing Plan essentially is a bubble diagram that is not drawn with
enough specificity to delineate discrete boundaries. lt primarily shows the amount and type of
development with a general indication of where development will occur. Similarly, the FMP
"Residential Development Plan", Exhibit G.1.b shows general development pods which differs from
the Phasing Plan. Mr. Dewey on behalf of Ms. Gould objected to these differences in her Third
Supplemental Memorandum dated August 28,20A8 (Ex. E to Applicants 2018-06-11 submittal) but
the Hearings Officer apparently did notfind those differences significant as she found the FMP to
substantially conform to the CMP. This appears to reflect recognition that the documents largely
are conceptual and provide flexibility provided that the elements of each Phase are met in the
general locations shown. This appears to be consistent with Board of Commissioner's reading of
theCodeinothercases. Seegenerally,EagleCrestlll,(Ex.Fto2018-06-ll submittal). ltalsoappears
consistent with the analogous conclusion by LUBA that neither the statutes nor the CMP requires
247-18-0A0386-TP / 454-SP / 592-MA Hearings Officer Decision Page 22 gf 81
t ._!:.il.r r:::. .[,. r .,r.,
1
2
J
4
5
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8
9
10
11
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14
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16
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20
2L
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26
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
BEFORE THE LAND USE BOARD OF APPEALS
OF THE STATE OF OREGON
ANNT]NZIATA GOULD,
Petitioner,
VS
DESCHUTES COI.INTY,
Respondent,
and
CENTRAL LAND & CATTLE CO., LLC,
Int erv enor- Re s p on dent .
LIIBA No. 2018-140
FINAL OPIMON
AND ORDER
Appeal from Deschutes County.
Jeffrey L. Kleinman, Portland, filed a petition for review and argued on
behalf of petitioner.
27 No appearance by Deschutes County.
28
29
30
31
32
JJ
34
35
36
37
38
Liz Fancher, Bend, filed a reply brief and argued on behalf of intervenor-
respondent.
ZAM{.IDIO, Board Member; RUDD, Board Member, participated in the
decision.
RYAN, Board Chair, did not participate in the decision.
REMANDED 0612U2019
Page 1
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
1 applicable regulations. The hearings officer did not misconstrue applicable law
2 in concluding that Phase A-1 did not materially affect the FMP approval for
3 phased development of OLUs.
4 Petitioner argues that the decision is based on inadequate findings because
5 no part of the plan for Phase A-1 shows how the first 50 OLUs will be
6 constructed. Intervenor responds, and we agree, that it may obtain approval of a
7 tentative plan without providing details about the OLU construction. The
8 residential units may not be sold, leased, or rented until the OLUs are built and
9 assured through financing. Intervenor states that after the tentative site plan is
10 approved, intervenor will subsequently submit site plans that show how the lots
11 will be developed to provide the OLUs and recreational amenities. Record 1562.
12 Petitioner argues that the hearings officer erred in approving the tentative
13 plan because the plan does not describe the OLU structures in sufficient detail to
14 establish whether they qualiff as OLUs as defined in DCC 18.04.030. See n 1.
15 Petitioner argues that the proposed ownership, location, and design of the OLUs
16 factor into whether a structure qualifies as an OLU.
17 Intervenor responds that the county's prior CMPIFMP decision, and
18 related appeals, resolved the OLU issue. We agree.In Gould v. Deschutes
19 County,54 Or LIIBA 205,232 rev'd and rem'd on other grounds,2l6 Or App
20 150, I7l P3d 1017 (2007) (Gould CMP II), we reasoned that the resort CMP
2I proposed construction of 50 cottages with lockout facilities (to ensure 150
22 separate rentable units are available within the first phase) satisfied DCC
Page 11
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2A19
I 18.113.050(BX8), which requires "A description of the proposed order and
2 schedule for phasing, if any, of all development including an explanation ofwhen
3 facilities will be provided and how they will be secured if not completed prior to
4 closure of sale of individual lots or units[.]" Petitioner does not contend that
5 anything in the tentative plan changes the CMP/FMP provision for OLUs, and
6 we do not understand that it does. The hearings officer did not err by failing to
7 require intervenor to submit detailed plans for the cottages that will provide the
8 required OLUs.
9 Petitioner argues that the challenged decision conflicts with the decisions
10 in a line of destination resort cases that we have referred to as the Caldera cases.
11 See Central Oregon Landwatch v. Deschutes County,74 Or LUBA 540 (2016)
12 (Caldera I), rev'd and remanded,285 Or App 267,396 P3d 968 (201 7) (Caldera
13 II); Central Oregon Landwatch v. Deschutes County,76 Or LUBA 6 (20L7)
L4 (Caldera III). The Caldera cases concerned an expansion of an existing
15 destination resort called Caldera Springs Resort. The existing resort included 38
16 single-family vacation homes with three to five bedrooms. Each bedroom has an
17 en suite bathroom and outside entrance and could be locked off from the main
18 cabin and the outside (lock-off rooms). The county approved the expansion,
19 including 395 new single-family dwellings and an additional 95 OLUs. Caldera
20 I, 7 4 Or LI-IBA at 544 .
21 On appeal, the petitioner argued that the lock-off rooms in the existing
22 resort could not be counted as separate OLUs. The intervenor responded that
Page 72
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
1 argument was an impermissible collateral attack on the existing resort approval.
2 We reasoned that the petitioner's argument that the existing lock-off rooms that
3 were part of the prior-approved resort could not be counted to satisfu the overall
4 OLU requirement for the expansion was not an impermissible collateral attack
5 on a prior decision because the challenged expansion approval criteria, DCC
6 18.113.025(8), required the county to determine that the entire resort facility,
7 including the existing facilities, satisfied all the requirements for a destination
8 resort. Caldera 1,74 Or LI-IBA at 552.6 The Court of Appeals affirmed that part
9 of our decision. Caldera 11,285 Or App at282.
10 On the merits, the intervenor in Caldera invoked Gould CMP II, 54 Or
11 LUBA 205, arguing that we had approved inclusion of similar lock-off rooms in
6 DCC 18.113.025 provides:
"Expansion proposals of existing developments approved as
destination resorts shall meet the following criteria:
"A. Meet all criteria of DCC18.113 without consideration of any
existing development; or
"8. Meet all criteria of DCC18.113 for the entire development
(including the existing approved destination resort
development and the proposed expansion area), except that as
to the area covered by the existing destination resort,
compliance with setbacks and lot sizes shall not be required.
"If the applicant chooses to support its proposal with arry part of the
exi sting deve lopment, app li c ant shall demonstr ate that the propo s ed
expansion will be situated and managed in a manner that will be
integral to the remainder of the resort."
Page 13
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
1 the calculation of OLUs in that case. We explained that the petitioner's challenge
2 in Gould CMP II was narrow-the petitioner had argued to us that the fact that
3 the OLUs could be converted to residential units in the future required denial of
4 the CMP. InCalderal, we explainedthat, in GouldCMP Il,noparty arguedthat
5 the proposed lock-off units did not qualiff as OLUs. Caldera 1,74 Or LUBA at
6 552-55.
7 In Caldera I, we determined that the individual lock-off rooms do not
8 qualifl, as OLUs under the statutory definition in ORS L97 .435(5)(b). See n 1;
9 Caldera 1,74 Or LUBA at 552-55. The Court of Appeals reversed and remanded
10 our decision on that statutory interpretation issue. Caldera 11,285 Or App 267.
11 Ultimately, we remanded the decision to the county for fuither findings. Caldera
12 III,76 Or LLIBA 6.
13 As an initial matter, the Caldera cases do not provide a definitive rule
14 regarding what type of rentable accommodations satisff the OLU definition.
15 hrstead, the Caldera cases concluded that whether an accofirmodation meets the
16 OLU definition requires a fact-specific inquiry. Thus, the Caldera cases do not
17 provide a general rule that lock-off accommodations cannot qualify as OLUs.
18 Second, and more importantly, this case is distinguishable from the
19 Caldera cases on the issue of collateral attack. The Caldera cases involved the
20 review of a CMP for a resort expansion, and specific resort expansion criteria
2l reopened the issue of whether the lock-off rooms in the approved resort qualified
22 as OLUs. Differently, the challenged decision in this appeal is a tentative plan
Page 14
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
1 under an approved CMPIFMP. Even if the Caldera cases controlled the issue of
2 what type of accommodations qualifu as OLUs, the tentative plan approval could
3 not violate the Caldera cases because the tentative plan approval does not decide
4 whether the specific design of the OLUs meets the definition of OLU.
5 The character of the OLUs, and whether they met the definition of OLU,
6 was decided in the CMP approval and not challenged on appeal from the CMP
7 approval tn Gould CMP II. That issue is settled, unless and until the resort seeks
8 approval from the county to modi$r the design of the required OLUs. See
9 Safeway, Inc. v. City of North Bend,47 Or LUBA 489, 500 (2004) ("As a general
10 principle, issues that were conclusively resolved in a final discretionary land use
11 decision, or that could have been but were not raised and resolved in that earlier
LZ proceeding, carutot be raised to challenge a subsequent application for permits
13 necessary to carry out the earlier final decision."). Thus, even if we agreed with
14 petitioner that the approved OLU design is inconsistent with the decisions in the
15 Cqldera cases, an issue on which we express no opinion, that conclusion would
16 provide no basis for reversal or remand in this appeal because that issue is not
17 subject to collateral attack in subsequent applications carrying out the FMP. The
18 hearings officer did not err in approving a tentative plan that did not include
19 detailed plans for the cottages that will provide the required OLUs.
20 B. Visitor-oriented Recreational Facilities
2l In addition to establishing compliance with the FMP, each development
22 phase of a destination resort must receive additional approval through site plan
Page 15
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
1 the state water riglrt permit." See n 9. The hearings officer concluded that FMP
2 Condition 10 requires "documentation of the state water permit and an
3 accounting of mitigation 'under the water right,"' and that the condition was
4 satisfied by the "complete documentation of the status of the permit and IDP."
5 Record 73. Prior to expiration of the deadline for using the water under its water
6 rights permit, intervenor applied to extend the permit. OWRD denied the request
7 for permit extension. OWRD later withdrew the denial and approved the
8 extension. Petitioner filed a protest of the OWRD order. Subsequently, OWRD
9 informed the county that the resort "has done everything needed to be in
10 compliance and good standing with OWRD in regards to [the permit] as well as
11 purchasing mitigation credits and providing instream flow benefits without even
12 using any water yet." Record II52.In September 2A18, OWRD stated that the
13 permit is in fu1l force and effect, which the hearings officer concluded means that
14 the extension approval remains valid pending resolution of the appeal. Record
15 501.
16 Petitioner argues that the challenged decision is invalid because the initial
17 OWRD water permit expired and, thus, the tentative plan cannot be approved in
1 8 the absence of a condition of approval requiring intervenor to demonstrate that it
19 has obtained a valid water permit.
20 Intervenor first responds that petitioner waived the water permit expiration
2l argument because petitioner argued before the hearings officer only that
22 intervenor's water permit extension was subject to petitioner's protest. Petitioner
Page 33
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
1 replies, and we agree, that petitioner raised the issue of the validity of the water
2 right permit and that issue is not waived. See DLCD v, Tillamook County, 34 Or
3 LUBA 586, aff'd, 157 Or App 11,967 P2d 898 (1998) (ORS 197.835(3) and
4 ORS 197.763 require that petitioners at LUBA have raised the issues they wish
5 to raise at LIJBA during the local proceeding; however, that restriction does not
6 apply to individual arguments regarding those issues).
7 Intervenor argues that the current record demonstrates that intervenor has
8 a valid water right and petitioner's protest of the extension "does not render the
9 permit void." Response Brief 54. We agree that the hearings officer did not err in
10 construing FIVIP Condition 10 to require documentation of the water right and
11 concluding that, based on the record before him, intervenor had established a
12 valid water right.
13 The subassignment of error is denied.
14 B. Wildlife Mitigation
15 Petitioner next argues that the hearings officer erred in approving the
16 tentative plan because intervenor has failed to provide details for wildlife
17 mitigation. The wildlife mitigation plan requires intervenor to restore wildlife
18 habitat on the property. Onsite mitigation is required for each phase of
19 development. For example, wildlife road underpasses are required to be
2A completed at each phase and intervenor must control noxious weeds and preserve
2l native vegetation, logs, and snags. With respect to off-site mitigation, the FMP
2? wildlife mitigation plan requires intervenor to provide 2.3 acres of mitigation for
Page 34
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
1 every developed acre or pay a fee in lieu into escrow if mitigation land is not
2 available. Specific mitigation actions must be determined through consultation
3 with wildlife management agencies. Record 84.
4 FMP Condition 38 requires intervenor to "abide by the April 2008 Wildlife
5 Mitigation Plan, the August 2008 Supplement, and agreements with the BLM
6 and ODFW for management of off-site mitigation effortsf,] and "subrnit an
7 annual report to the county detailing mitigation activities that have occuned over
8 the previous year." See n 9; Record 221.
9 Before the hearings officer, petitioner argued that the intervenor was
10 required to demonstrate in the tentative plan how intervenor would carry out the
11 FMP wildlife mitigation plan. Intervenor argued that the wildlife mitigation and
12 consultation would occur during alater subphase of Phase A.
13 The hearings officer observed that wildlife mitigation measures are
14 required to be incrementally implemented at each phase of development and that
15 specific on-site implementation measures are dependent on the manner in which
16 construction activities occur on the subject property. With respect to on-site
17 mitigation measures, the hearings officer found no basis to deny the tentative plat
18 or site plan applications. Record 84. However, the hearings officer reasoned that
19 the subphasing of Phase A could potentially lead to noncompliance with the
20 wildlife mitigation plan. For example, if the dwellings that are subject to the
2I Phase A-1 approval are constructed, but further development stops, then
22 development could potentially occur without compliance with the wildlife
Page 35
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
1 mitigation plan. 'Io prevent that result, the hearings officer imposed rwo
2 conditions requiring ongoing restoration of native vegetation where construction
3 disturbs native vegetation in open space areas that are planned to be retained in a
4 substantially natural condition and requiring intervenor to obtain BLM and
5 ODFW concurrence that no mitigation is required, or provide required mitigation
6 or deposit escrow funds in lieu of mitigation. Record 1 18.r2
7 Petitioner does not challenge the adequacy of those conditions, but instead
8 simply reiterates her argument before the hearings officer that intervenor was
9 required to provide a detailed mitigation plan prior to tentative plan approval.
10 Petition for Review 56. Intervenor responds that FMP Condition 38 assures
11 compliance with the wildlife mitigation plan by requiring an annual report of
12 mitigationactivities.
12 The TP includes the following conditions of approval:
"19. FMP Condition 34: As an ongoing condition of approval, where
construction disturbs native vegetation in open space areas that are
to be retained in substantially natural condition, the applicant shall
restore the native vegetation. This requirement shall not apply to
land that is improved for recreational uses, such as golf courses,
hiking or nature trails or equestrian or bicycle paths.
"20. FMP Condition 38. Prior to issuance of building permits for
any Phase 'A' development: obtain BLIWODFW concurrence that
no mitigation is required; provide such mitigation or establish the
escrow and deposit funds equal to the area of such mitigation."
Record 1 18 (boldface omiued).
Page 36
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
1 As established in prior appeals, the mitigation plan satisfies the substantive
2 no net loss/degradation standard for destination resort development. We agree
3 with intervenor that the details of the mitigation plan are established by the FMP,
4 and compliance (or noncompliance) with the mitigation measures will be
5 established by annual reporting required by FI\zf Condition 38. We reject
6 petitioner's argument that the FMP required intervenor to "fill in the details" to
7 obtain approval of a tentative plan during phased development. Petition for
8 Review 56. Petitioner has not demonstrated that the approved subphasing, ?S
9 conditioned, alters any mitigation requirement under the FMP mitigation plan.
10 Petitioner's argument provides no basis for remand.
11 The subassignment of error is denied.
12 C. Related Conditions of Approval
13 The mitigation plan involves (1) the removal of two wells on the subject
14 property, (2) the removal of two dams that impede the flow of spring water from
15 Deep Canyon Creek to the Deschutes River, and (3) transfer of water fiom Deep
L6 Canyon Creek that Big Falls Ranch uses for irrigation for mitigation. Record 215.
17 Petitioner argues that the hearings officer erred in failing to require as a condition
18 of approval for the tentative plan that, prior to beginning construction, intervenor
19 remove the dams and the wells. Petitioner argues that while the body of the
20 hearings officer's decision states that the first dam will be removed prior to
21 construction under the tentative plan, he failed to include dam removal as a
22 condition of approval.
Page 37
EXHIBIT 6: TP A-1 LUBA DECISION JUNE 21,2019
I Intervenor responds, and we agree, that removal of the dams and provision
2 of mitigation water is required by the FMP approval and the tentative plan does
3 not alter the mitigation plan. Response Brief 55. The hearings officer was not
4 required to impose additional conditions to the approval of the tentative plan.
5 Petitioner also argues that the hearings officer's discussion of compliance
6 with FMP Condition 38 is inadequate and that the hearings officer
7 inappropriately allowed deposit of funds in lieu of required mitigation.
8 Petitioner's argument appears to be repetitive of other arguments in the petition
9 for review, which are addressed earlier in this decision. If, instead, petitioner
10 intended to present a different and distinct argument, then that argument is not
11 sufficiently developed for our review and, thus, provides no basis for remand.
12 Deschutes Development Co.,5 OTLUBA at220.
13 This subassignment of error is denied.
14 The second assignment of effor is sustained, in part, and denied, in part.
15 The county's decision is remanded.
Page 38
regon Water Resources DePartment
North Mall Office Building
725 Summer St. NE, Suite A
Salem, OR 97301
Phone 503-986-0900
FAX 503-986-0904
www.wrd.state.or.us
John A. Kitzhaber, MD Govemor
March 12,2014
Central Land and Cattle ComPanY
2447 NW Canyon Drive
Redmond, Oregon 97756
Reference: Application G- 1 63 85, Permit G- 1 703 6
The assignment from Thomburgh Utility Group, LLC to Pinnacle Utilities, LLC has been
recorded in the records of the Water Resources Department.
The Departments records will now show Pinnacle Utilities, LLC as the permit holder of record.
Our records have been changed accordingly and the original request is enclosed. Receipt number
111341 covering the recording fee is also enclosed'
Please review the permit to be familiar with the conditions and timelines contained in the permit.
These conditions and timelines will have to be met before a Certificate of Water Right can be
issued.
Sauter
Water Rights Program Analyst
Water Right Servises Division
Enclosure; Receipt 1 1 1341
cc: Watermaster 11
Data Center, OWRD (cover ietter & request)
Hydrographics
File
:5^rjd
EXHIBIT 7 OWRD Permit Transfer to Pinnacle
Oregon Tf ater Rcsources Department
725 Summer$teetNe Suit€ A
Salem,Oregon 9730I
(503) 9860900
www.wrd;slate.tr-us
Reqnest for
Assignment
If for multiple righr.S a sepa'ate furm and fee lor cach rightwill be required.
Thomburgh Utility Group, LLCI,
(I'{ame af Applieant / Pertnit / Transfer Holder / License HolderlGR Ce rtif e ate of Regi strat i on)
2447 NW Canyon Drive Redmond OR97Z56 541-350-8479
(it'Iailing AddreN){CW gtate) pip) {Fhane#)
E hereby as sign aII W interegtin and to application/permitltransfer/lice$eicR Certificate ofRegistration;
ff hereby-assign all.my interestin and to a porfion of application/pemii/transfer/licenselGR Certificateof Regisration ; (Yau must iae lude a nap showing the po*an iy tne
appticatiodpermit/transferllicense/GR Certifieate af Registration to be assigaed.)
tr ryt*y a*sign q portion af nv interestin and to the erfi'r'€ applicaticrr/pennitrtransfer/lieensel6R
Certifi cate of Registration:
Application gG-16385 Permir G-17036 Transfer #
-OR-
License #OR Satement#GR Ce*ificate ofRegistration #
As filed in the office of the Water Ressurces Dir€ctor, to;
Pinnaele Utilities, LLC
(Name af New Owner)
2447 NW Drive Redmond OR97756 541-350-8479
N,rtff If &ere are other owners of,tJre property described in the Applicaliorl perrniq Traasfer, License, orCR Certificate of Registration,Jpou must prwide n list af ati other owners' kames and mailing
addresses qnd attach it to this forzn.
I hereby certify that I have notified all other nwners of the property described in this ,A,pplication,
Permil Transfor, License, or GR Certificate of Rrgistrarion of this Request for Assignment
Wi{ness my
ApplicantlPermit Holder
Applicant/Permit Holder
2A14hand &is Sth day of
DO NA:r
'YRITE
{N TT{TS 8{}X
(CIty) (State) {Zip) {Phone #)
The completed "Request for Assignrnenf'
form mnst be subrnitted to the Department
along with the recording fee of $E5"
{Mailing Address)
3
- This ce(ifres assignmenl and reoord change at
Oregon Water Resources Department ifeptive
8:00a.m. on date of receipt at Salem, Oregon-Feereceipt#tllg'll I n /t
- For Director ffJi6 sagf*, vfffi*aryst
Water Rights Divisiony' fl f6z".Q
tn
Last ilpdated: Ju\; 19, 2$13 Req uest fo r A s s i gn,rrent WR
regon Water Resources Department
North Mall Office Building
725 Summer St. NE, Suite A
Salem,0R 97301
Phone 503-986-0900
FAX 503-986-0904
www.wrd.state.or.us
John A. Kitzhaber, MD, Governor
March 12,2414
Central Land and Cattle Company
2447 NW CanyonDrive
Redmond, Oregon 97756
Reference : Application G- 1 63 I 5, Permit G- 1 703 6
The assignment from Thomburgh Utility Group, tLC to Pinnacle Utilities, LLC has been
recorded in the records of the Water Resources Department.
The Departments records will now show Pinnacle Utilities, LLC as the permit holder of record.
Our records have been changed accordingly and the original request is enclosed. Receipt number
I 1 1341 covering the recording fee is also enclosed.
Please review the permit to be familiar with the conditions and timelines contained in the permit.
These conditions and timelines will have to be met before a Certificate of Water Right can be
issued.
Sauter
Water Rights Program Analyst
Water Right Services Division
Encloswe: Receipt 1 1 1341
cc: Wateffnaster 11
Data Center, OWRD (cover letter & request)
Hydrographics
File
1
rA.sd
EXHIBIT 8: WATER RIGHTS PERMIT
Oregon Water Rcsourees Deptrtnent
725 SummerSacetNE" SBit€ A
Salem, Oregon 97301
(s03) esG0e00
www.wrd.state.or.us
Request for
Assignment
If for multiple rightg a separaie form and fse for eact right will be required.
Thomburgh Utility Group, l-LCL
(I€ame of Appli*ant / Permit / Transfer Hol&r /Licexse Holdet /G8. Ce rtiJieate of Registration)
2447 NW Canyon Drive Redmond OR97756 541-350-847S
(t{aiting Address){City) (Stdte) {Zip) (Phone #)
EI herely axsign allyw interestin and to application/permitltransfer/licenseiGR Ccrtificatc of
Registation;
fl hereby assign all my inte#s! in and to a portion of applicationlpermiltramfernicense/GR Certificate
of Registration; {Younast include a map showing the portion of the
opptieatioilpemtitltransferllicenselGK. Certi$cale of Registration to be assigned)
f] hereby assign q eortion of ,rr]' interesi in and to the ea{r. applicadon/permiVtransfer/license/CR
Ce*ifi cate of Registration:
Application ; G-16385 p6s1gG-17036 Transfer #
-aR.
Lic€nse #GR Staternent #GR Certificate of Registration #
As filed in the of6ce oftlell'ater Resources Direstor. tc:
Pinnacle LLC
(Name af New Owner)
NW
(MailingAd*r.ss)
DA NOT VRITE TN TT{'S 8AX
- This certifies assignment and record change at
Oregon Water Resources Depadmcnt eifective
8:00a-m. on date of receipl at Salsm, Oregon.
- Fee receipt # Ne'll I n n
- For Director by Jery Saffr, PloSaSAnalyst
WBtcr Righh Divisiory4' 11' rfz'.{?
Redmond ORS7758 541-350-8479
{Cuy) (State) SipS (Phone #)
The completed *Request for Assigffnenf'
form mzst be submitred to f}e Department
alo&gwith the recording fee of $85"
{3
m
2
Nalej If there are other owners ofthe propergr deseribed in the ApplicatiorL Permit, Transfer, License, or
GR Certificate of Registratiorq you must provide a list of a{l ather owners' names and mailing
addresses and at ach fI ta thisfarm.
t hcreby certify that I have notified all o&er or.vners ofthe property described in this Application,
PErmit Transfer, Licensq sr CR Certificate of Regist"ation of this Request for Assignment
14Witness my 1t"n66.;t Sth
Appl icanr,f ermit Xolder
ApplicantlPermit llolder
day of
L48t updated: Jd! 19,2013 ReqwatforAssignment WR
STATE OF OREGON
COUNTY OF DESCHUTES
PERMIT TO APPROPRTATE THE PUFLIC WATERS
THIS PERMIf IS HEREBY ISSUED fO
THORNBURGH UTILITY GROUP' LLC
244I NI/f CANYON DR
REDMOND, oR 97756
Thespecificlimitsand'conditj-onsoft.heusearelistedbelow.
MAXIMuMRATEANDVoLl'I{Ezg.ZSCUBICFEETpERsEcoND,LIMITEDToA
MAXIMT,I' AI{T{UAI,, VOI'UME OF Z 'Iii 'A ACRE ,FEET (AF} ' THg RATE AI{D VOLUME
ARE FURTHER LrMrrED By rrie coRRESPoNDiNc MrrlGATroN PROVTDED " TI{E
MAXIMT]M VOLUME FOR IRRIGATIO:N
-OT :ZO'O JCNES FOR GOLF COURSES SHAT-,L NOT
EXCEED 7L7.0 ACRE FEET'
PERIOD OF USE: YEAR ROITND
DATE OF PRIORITY: FEBRUARY 9' 2005
APPLICATION FII'E NU!tsER: G-16385
SOURCEOFWATER:SIXWEI'ITSINDESCHUTESRI\/SRBAS]N
PURPOSE OR USE: QUASI-$IIINICIPAI' USES' INCLUDING IRRIGATION
couRsES aNn coroaeRCrel ongAJ, AND IVIATNTBNANCE oF RESERVOTRS '
LOCATIONS:
WELL 1: SEa/q,NW%, SECTION 28, TLsS' Rl-28' W'M';
AND 2335 FHET ;Asi rnorc Nw coRt\TER' sscrroN 28
WELL 2: SE % NW %, SECTICIN 29' T15S' Rl-zS' W'M';
A}ID 2?50 T'EET WSST FROM l\IE CORISSR' SFCTION 29
WELL 3: SW % sw %, sECTroN 2l-', Tl-ss' Rl-28' W'M';
AND 400 I'EET etst FROM SW CORNER', sEcTroN 2l-
WELL 4: NE % SE a/t' SECTIO}I 20' T15S' R12E' W'M' i
AND ?50 FEET T^ESI FROM NE CORNER, SECTION 20
Water Resources DeparLment
OF GOLF
1BOO FEET SOUTH
1655 FEET SOUTH
1]-OO FEET NORTI{
2885 FEET SOUTH
PERMIT G*1-?036
WEI,L
WELL 5; SW % NE %,
AI{D 1-860 !'EET WEST
sEcrl0N 2A'
FROM NE CORNER,SECTION 2O
55. R128, W-M'
sscrroN 17
2375 FEET SOUTH
WELL 6: SE 7l NW %, SECTION L7 ' T1
oG :615 FEET WFST FRol{ NE coRNER'
Application G-16385
3
The amount of water used for irri-gation under this right' LogeLher wit}.
the amount secured under u,,J olir*J twrrt exi-sting for L'e same lands ' is
linuited Lo a di.r"rsion of Oifg-efGlt*IET$ "t
-"tt" *"ni" foot per second and
3 .0 acre_f eet f or eaeh *.rJ Jigacea a*ri*g the irrigation season of
eackr year, rrrl-Lorrot or i.t*r irsea for golt cotr'se irrigation under
this righr i"-irrtrr", r*it.*a to a aiversio"n-of z-24 acre*feet for each
acre irrigateJa"ti"g Lhe itrigatj-on season of each year'
Ivleasurement, recording and' reporting condi-tions:
A.Beforewateruseroaybeginr:nder.t}rj.spermit,lh=permitteeshallinstall a totalizing tfJ* meLer "t """ft-Joi*t of appropriation' The
torali-zing f 1ow **a"t** *t"! n" inJalied and mJintained in good
working ord", .or.sislenr with arto*"- slandard's identified in oAR
590-507-645(1) through--fll' The p*t*itt"" shal1 keep a complete
record of the amount of watet .r=*J ""c1- month and shall submit a
report which includes-in* recorded water use measurements to ttre
o*p*rr*"rrl annually or more rreq1rJ*it, "" may be required by Lhe
Director. FurLher, the Director *"y;-*-dtire the permittee to report
general ;*;; use iniot*"aiorr, it "frtA--ittg the p'ace and nature of
use of water und'er tbe Pernuit '
Page 2
THE pI-AcE oF UsE Is WITH:N THE B'UNDARIE' oF THE T}''RNEURGH RE''RT,
BEING WITHIN JJC*ONS L7 '
.i'*'..l{, ZE' Zg' A}JD 30; TOWNSH:P 1-5 SOUTH'
RANGE L2 EAST, W.14'
B.T}repermitteeshal].a]-]-ov.lthewaterrnasteraccessLothemeters;provided_ho'".,o,l,rd:.erethemetersarelocatedwithinaprivat'e
strucLure,Lhewatermaut*'shallrequestaccessuponreasonablenotice
use of waler under aulhority of rhis perm:it may be regerlaLed if analysis
of dara a'aj-lable after 'tt* per:nit ; islued discloses that the
appropriaaio,' offa ****.rt.frit tJd.*t* 'tlee s*rf.ce water fl-ows necessarlr
bo maintain ;;" tree*rrow{ng c}rarac.ter of a scenic waterway in
quantiLies necessary tor r**J.tiorr, fish and wildlife in effect as of
bhe priority-;rt** or *re right or as those quantit'ies may be
subseguentlyreduced.However,t}reuseofgroundwaLerallowedunderthe terms of lhis pefmit will not be subject Lo regulation for scenic
Walerway flows so long as rnitigat'ion is maintained'
GROI'}TD WATTR MITIGASIO$ COIIDITXONS
Mitigabion obligali-on; l-356'0 acre-feet annually in the General Zone of
Imtrract tanywirlr! in the p"s"hoi*s Basin above the Mad'ras gage' located
on the nescirut*= nitttt below Lake Bi11y Chinook' )
EXHIBIT 8: WATER RIGHTS PERMIT
waler Resources DepartmenL PERMIT G-1-7035
4
Application G*1-6385
Mitigation source: Mitigation cred'its from a chartered miuigati-on bank'
or suitable replacement_ rna;igation t'ha: meeLs ttre requirements of oAR
690-505-061-0,
-;; accordan"* i"iilt the incremental development plan on
fil-e with Ltre Department, meeLing the reqr:ireme"!=-of oAR chapter 590'
Division505(Deschut*"et;;;a-*i"*tMiiig"tionRules)andoARCtrapter
590 Division iiz, wirh'in the General Zone of Impact''
Mit'igationwaLermustbelegallyproLectedinstreamforinstreamusewithin the General zone ot*iip."i "rg committ,ed for life of the permiL
and subsequent certif icate [s ] " n"*tGtiol - . of. ttre use and/or
cancellat.ion of t,-e permit, or subsequeit-"*ttificatets) will occur if
Ltre reqr.rired Jtig"tion is not maint'ained''
Ifmj-tigationj-sfromasecondaryrightforstoredrgaterfromasLorageproject not owned ol operated bv the perrn:ittee, the use of water r:nder
t'is right is subj ect ,to trr* t"t"n "r-a
-""r.d.itions of a val'd contracL '
or a satisfactory t*pft"**lt't, wiLh Lhe owner/operator of the storage
project, a ""n" ia*ii"h-**"J r" on file i-n lhe records of the waLer
Resources Depiitment prior to use of water
The permitLee sha1l provi-de additional mitigation if the Department
determinestbataverageannualconsumptiweuseofthesubject
appropri-atj-on has increased beyond the or{gina11y mitigated amount '
Thepermitteeshallprovid.emitigaLionpriort'oeachslageof
deveropment u*d.er the permit and in aecordance with the stand.ards under
690*s0s*0510 t2) - (s) ,
The permittee sha11 not increase the rate or amount of water diversion
before increasing the correspondinE mitigation'
The permittee slrall seek and receive Deparlment approval prior Lo
changingttrei',"'"*.otalpermitdewel"p*"''t'pr*''and"relaledincrementalmitigation -
Threpermi-tLeestrallreportto:h"Departmenttheprogressof
implementing the incre,n=lniat permit dewelopment plan and related
mitigation io later than aprif f"of each year' rlis anr*ral notification
is not necessary if th; perrn:itfee Uls completed' development and
submitted a Claim of BenefiJial use to th'e Department"
wiLhin five years of permil issuance, the permj-ttee shal1 submit a new
or updated Water Management and Conserv"tiott Plan pursuanL L'o OAI{
chapCer 690, Division 86'
Page 3
waler Resources DeparLment PERMIT G-1-?036Application G-15385
5
EXHIBIT B: WATER RIGHTS PERMIT
Page 4
Failureuocomp}ywithrh35emiriEaEionconditionsslrallresultintheDepartmenr re-gnrlaring. af grro;ta t;;;; permit' oI subseguent
certificale(s), proposing lo deny -"y p"i-it eitension application for
rhe sround ;i.; Jermir, "LI*nrrp."i"g to cancel the ground waLer
permit, or ="O"*qo*rrt certificate{s} '
S1rAIilDARD COIIDI1I IO}IS
FailureLocomplywit.ha::yoftheprovisionsofthispermitmayresu}tin action includlng' but noiFtlt:1 1".'- t"=trictiottt o* the use' civil-
penalties. "t "*""11ation of the permil'
If tl:e nunrber, locati on' - so1lrce ' or construction of any well deviates
from that proposed io *r"-!e#il ap. prication or requ'red by permit
cond.irions , erris pernri-t &" :{:Pi:iI t" cancellation ' unless the
Department *t'-if'oti'zes t}.e ctrange in writi-ng '
IfsubstantialinLerferencewithas€niorwaterrisrhtoccllrgduetowithdrawal of waLer from -ry r*u -tisted on this pJt*it, tl:en use of
water from t'he r"re1l(s) =f"if be discontinued or reduced andlor the
schedule of withdrawal "ir*ii n* regr,:rated ,rrrcir or unless ttre Department
approves or implemenLs, .r, "ft"totii-r" "O*i*i*t:1:it:. action to mitigate
t}re interf er*,,"". The DeBartment ertcollrages junior and senior
appropri*to''aojointlya"v""ropplanstornltigateinterferences.
The wel1s shall be constructed in accordance with the General Standards
for the Conslructioa .oO lttitienance of w*e"t Well-s in Oregon' The works
shall be eguipped with a usaJrle accegs porr, and' may also include an air
line and pressure gauge J*qt-t" to d'etermine water level elevation in
the well at all- times '
where two or more water users agrree alnongi LhemselVes- as to Lhe marrner of
ror.ation in ttre use of *tr*i-*E such ";;";;;;l iu placed in writins and
fiaeel lry srrctr'watea' lrsers willr tl e wat'eimaster' and suC}. fotatio:: System
does not infringe upon rr;;;;i tigitis of any waler user noL a parLv
Lo SuCh roLation p)"an' the watermaster shall d'istribute the water
according to such agreement'
prior to receiving a certificate of water right' the permit holder shal1
submiltot}reWaterResourcesDepart,menttheresultsofapumptesl
meering rtre Deparrmerr* J*!t**U:*: j; each point of appropriation
(well) , .rtr*u;-lt, exempbion has been "t*":tt"A in trriting und'er OAR 690-
2L7 . T}.e DirecLor *"y ,frrire water-leve1 or punp-t'est daLa every ten
years thereafler'
This permit is f or Lhe benef icial- use of water without waste' The water
user is advised Lhat t"*-t"gtfationl rnw require the use of best.
practicar technologies o='-*orrJ*rwation praitices Lo achieve this end'
PERMIT G_1703b
6
Application G*16385 Water Resources DeparlmenL
water use
any 1oca1
Page 5
musL be in
acknowledgedBY jLa$, ti:re land use associated
;*ttp.Ii;". with stat'ewide land-use
*ind:&s6 plan:,
Theuseofwatershallbelimited,whenitinterfereswithanypraorsurface or grourld waler rights '
Complet'ionofconsLructionand.applicationofthewat'ershallbemadewithin five years of air* a*J" ot-p**it issoance. rf beneficial use of
permitL*a *rt*t bas not b; maal before this date' the permittee may
submit an application tor .*f*rr=iot of time. which may be approved based
rnl"-art"-*"?t of ttre application'
withinoneyearaftermakingbeneficialuseofwater,t'hepermittee
sha11 submit a claim of beneficial use' titi"it includes a map and reporl'
prepared by a-Cerflfied Water Ri-g1.ts Examiner'
ThiS permit is i-ssuadl !o correct'ly describe the naximrln arrnual wolume'
permit G-1?009, dated February 7, 2OL3' iS sUperseded by this inst'nrment
and is of no furttrer force or effect'
Issued aPril 5 ?$3-3
with this
goals and
Water Resources DePart"ment
Volume 1- DESCHUTES R M]SC
t
,pt M*r34
for PhilliP C'Ward, Director
Water Regources DePartment'
Application G*l-6385
Basin 5
PERTVIIT G*1?036
1_L
7
Tuesday, September t ,2O2O at 14:00:00 Pacific Daylight Time
Subject: new inc plan
Date: Thursday, August 27,2O2O at 3:55:32 PM Pacific Daylight Time
From: HENDERSON Sarah A * WRD
To: Kameron Delashmutt
Attachments: image003.jpg, image0O4.jpg
DRC Mitigation
Bank2413 -202L
2022 - 2024
2025 -2029
2030 - 2034
2035
401.61AF additional
4L6.78 AF additional
815.57 AF additional
489.04 AF additional
31s.8 AF
additional
212.0 AF
additional
515.5 AF
additional
309.1AF
additional
r"356.0 AFTotals 2L29.O AF
Scu'ahAJ{snd,erson
Flow Restoration Progra m Coordinator
Transfer and Conservation Section
725 Summer St. NE, Suite A lSalem, OR 97301 | Direct: 503-986-0884
Email : sa rab.a-hcnderson@oregqn.gov
i . .-.,rtw1 {:}nf;{t{}t
,*r$ff*k*r
lnt€Srity I Servire I Tecirrric*l Ixie]lcr;ce i leanrwork I l'crward-l"or:king
Page 1 of 1
Water Resources Department
??5 S*mmer StNE, SuiteA
Salenl OR 97301
(s03) 986-0900
Fax (503) 986-09$4
Re:
July 10,2018
Kameron Delashmutt
PINNACLE UTILITIES, LLC
2447 NW CANYON DR
REDMOND, OR 97756
Request to Modify Incremental Development Plan for Pinnacle Utilities LLC Ground
Water Permit G-11036 (file G-16835)
Kameron
On Jnne 24,2018, the Department received a request to rnodify the incremental development
plan for Permit G-17036.
The plevious incremental development plan, approved by the Department, was as follows:
It appears that there was a previous request to update this plan in 2016 but it's not clear if that
update was ever confirmed.
The requested modification to the plan was as follows:
o See also attached breakdown of mitigation requirements by increment and type of use.
The requested modifications to the incremental development plan match the mitigation
obligation of groundwater pennit G-17036 and were incorporated as parl of the perrnit record on
July 10,2018.
lncremental Step Volume of use Mitisation Mitigation Source Mitigation Type
20L3 - 2016
6.0 AF 3.6 AF 3.6 credits from
DRC Mitigation
Bank
temporary
2017
2n3.4 AF
additional
1352.4 AF
additional
Totals 2129.0 AF 1356.0 AF
lncremental Step Volume of use Mitisation Mitieation Source Mitigation Tvpe
2013 -2419
6.0 AF 3.6 AF 3.6 credits from
DRC Mitigation
Bank
temporary
2020 -2024 401..6t AF additional 315.8 AF additional
2025 -2029 41.6.78 AF additional 212.0 AF additional
2030 -2434 815.57 AF addltional 515.5 AF additional
2035 489.A4 AF additional 309.1AF additional
Totals 2129.0 AF 1356.0 AF
EXHIBIT9IDP&UPDATE
As a reminder, the next annual update on implementation of the incremental development plan is
due to the Department no later than April lr2019. With your annual update, please include the
amount of water used (volume) during 2018 and the source of mitigation used during that period
(mitigation must be provided annually regardless of whether or not any water was used).
If you have any questions, please e-mail me at Laura.K.Wilke@oregon.gov or call Sarah
Henderson at (503) 986-0890.
Sincerely,
LauraWilke
Flow Restoration Program Coordinator
Jeremy Giffin, Watermaster District 11
David Newton, PE, CEG, CWRE
file G-16385
c
EXHIBIT 10: PROPOSED FINAL ORDER EXTENSION
Oregon Water Resources Department
Water Right Services Division
- Application for Extension of Time
In the Matter of the Application for an Extension of Time
for Permit G-17036, Water Rigtrt Application G-16385,
in the name of the Pinnacle-Utilities, LLC
)
)
)
PROPOSED
FINAL
ORDER
Basin
Date of Priority:
Source of Water:
Purpose or Use:
Maximum Rate:
Permit Information
Application f ile G-16385 / Permit G-17036
5 / Deschutes Basin / Watermaster District 1l
February 9,2005
Authorized Use of Water
Six wells in Deschutes River Basin
Quasi-Municipal uses, including irrigation of golf courses and commercial
axeas, and maintenance of reservoirs
9.28 cubic feet per second (cfs), limited to a maximum annual volume of
2,129.0 acre-feet (AF). The rate and volume are firrther limited by the
corresponding mitigafron provided. The ma"ximwn voluime for irrigation of
320.0 acres of golf'courses shall not exceed 717 .0 AF i
This Extension of Time request is being processed in accordance with Oregon
Administrative Rule Chapter 690, Division 315.
Please read this Proposed Final Order in its entirety as it contains
additional conditions not included in the originalpermit"
This Proposed Final Order applies only to Permit G-17036, water right Application G-16385.
Summary of Proposed Final Order for Extension of Time
The Department propoles to:
Grant an extension of time to complete consfiuction from April 3,2018,to October 1,
2035.
Grant an extension of tim6 to apply water to fulIbeneficial use from April 3, 2018, to
October 1,2035.
Make the extension of time subject to certain conditions as set forth below.
o
a
a
Proposed Final Order: Perrnit G-I7036 Page 1 of10
EXHIBIT 10: PROPOSED FINAL,ORDER EXTENSIO.N
ACRON-TM OI]ICK REFERENCE
Department - Oregon Department of Water Resources
PFO - Proposed Final Order
WMCP - Water Management and Conservation Plan
Units ofMeasure
cfs - cubic feet per second
AF - acre feet
AUTHORITY
Generallyo see ORS 537.630 and OAR Chapter 690 Division 315.
ORS 537.630(1) provides in pertinent part that the Oregon Water Resources Department
(Department) may, for good cause shown, order and allovi an extension of time, for the
completion of the well or other means of developing and securing the ground water or for
complete application of water to beneficial use. In determining the extension, the department
shall give due weight to the considerations described under ORS 539.010 (5) and to whether
other govemmental requirements relating to the project have significantly delayed completion of
construction or perfection ofthe right.
ORS 539.010(5) provides in pertinent part that the Water Resources Director, for good cause
shown, may extend the time within which the full amount of the water appropriated shall be
applied to a beneficial use. This statute instructs the Director to considerj the cost of the
appropriation and application of the watep to a beneficial purpose; the good faith of the
appropriator; the market for water or power to be supplied; the present demands,therefore; and
the income or use that may be required to provide fair and reasonable returns upon the
investment.
OAR 690-315-0080 provides in pertinent part that the Department shall make findings to
determine if an extension of time for quasi-municipal water use permit holders may be approved
to complete construction and/or apply water to fuli beneficial use.
OAR OiO-SfS-0090(3) requires the Departrnent, under specific circumstances, to "orrdition *
extension of time for quasi-municipal water use permit holders to provide that diversion of water
beyond the maximum rate diverted under the perrrit or previous extension(s) shall only be
puthorized upon,issuance of a final order approving a Water Management and Conservation Plan
under OAR Chapter 690, Division 86.
FINDINGS OF FACT
On February 7,2013, Permit G-17009 was issued to Thomburgh Utility Group, LLC
(Thomburgh) by the Departrnent. The permit authorizes the use of up to 9.28 cfs of
water, limited to a maximum annual volume of 2,355.0 AF of water, from six wells in the
Deschutes River Basin for quasi-municipal uses, including irrigation of golf courses and
1
Proposed Final Order: Permit G-77036 Page 2 of 10
3
4.
EXHIBIT 10: PROPOSED FINAL ORDER EXTENSION
2.
commercial.areas, and maintenance of reservoirs. The rate and volume are further limited
by the corresponding mitigation provided. The ma><imum volume for irrigation of 323.0
acres for golf courses shall not exceed 717.0 AF. The permit specifie{ completion of
construction and complete application of water was to be made withiq five years of
permit issuance, being February 7,2018.
;
On April 3.,2013, Superseding Permit G-17036 was issued by the Department to
correcfly describe the maximum annual volume. The'superseding permit authorizes the
use of'up to 9.28 cfs of water, limited to a maximum annual volume of 2,129.0 AF of
water, from six wells in the Deschutes River Basin for quasi-municipal uses, including
irrigation of golf courses and commercial areas, and maintenance of reservoirs. The rate
and volume are further limited by the corresponding mitigation provided. The maximum
volume for irrigation of 323.0 acres for golf courses shall not exceed 777.0 AF. The
permit specified completion of construction and complete applicationiof water was to be
made within five years of permit issuance, being April 3,2018.
On March'70,2074, an assignment from Thornburgh Utility Group, LLC, to Pinnacle
Utilities, LLC (Pinnacle) was recorded in the records of the Water Resources
Department.
5
On April 2,2018, Pinnacle subryitted an "Application for Extension of Time"
(Application) to the Department requesting the time to complete construction and the
time to apply water to full beneficial use under the terrns and conditions of Permit
G-17036 be extended from October 1, 2018, to October 1,2035. This is the first
extension of time request for Permit G-17036.
Notification of the Applicatiori fo, E*trnsion of Time for Perm it G-17036was published
in the Department's Public Notice dated April 3, 2018. No public comments were
received regarding the extension application.
7
8
6.On May 8, 2018, the Department issued a Proposed Final Order to deny the Extension of
Time.
On May 22,2018, the Department issued an Order Withdrawing the Proposed Final
Order to deny the Extension of Time for additional consideration and clarification.
On May 25,2018, Janet Neuman, council for Pinnacle, submitted additional information
regarding construction of Well2.
Review Criteria for Ouasi-Municinal Water Use Permits /O,4R 69&-?15-0080(/)/
The time limits to complete construction and/or apply water to full beneficial,use may be
extended if the Departmentfinds that the permit holder has met the requirements setforth under
OAR 690-315-0080. This determination shall consider the applicable requirements of ORS
5 37. 2 3 01, 5 3 7. 6302 and/or 5 3 9. 0 t 0O)3
t OnS SlZ.Zl0 applies to surface water permits only
Proposed Final Order: Permit G-17036 Page 3 of 10
EXHIBIT 10: PROPOSED FINAL ORDER EXTENSION
C omplete Extension of T ime Apolicgltion I OA R 6 9 0 - 3 I 5 - 0 0 8 0 ( I ) b I I
g. On April 2 ,20l8,the Department received an Application'for Extension of Time and the
fee specified in ORS 536.050 from the permit holder.
Start of C onstrughon f OA R 6 9 0 - 3 I 5 - 0 0 I 0 (l) (b.t I
10. According to the additional information submitted to the Department on May 25,2018,
construction of DESC 756 (Well 2)beganprior to permit issuance.
11. According to the well log submiued to the Department on January 25,1991, construction
of Well 2beganonJanuary 9,1991.
Based on Findings of Fact (FOF) 10 and 11, the Department has determined that prosecution of
construction of the well began prior to April 3, 2018, as required by ORS 537.630Q)
Duration of Extension IOAR 690-315-0080fttk\ and ftt(dtl
(Jnder OAR 690-315-0050(t)(c),(d), in order to approve sn extension of timefor quasi-
municipal water use permits the Department mustfind that the time requested is reasonable and
the applicant can complete the project within the time requested'
12. The remaining work to be accomplished under Permit G-17036 consists of prosecution of
construction of the remaining wells; installation of the necessary water system
equipment, including pumps, pipe, service connections, and irrigation equipment; and
applying water to the beneficial use.
13. As of October 1, 2018, no water authorized under Permit G-17036 has been appropriated
for quasi-muricipal purPoses.
14. Perrnit G-17036, is the only water right held by Pinnacle.
15. Pinnacle's peak water demand within its service area boundaries was 0.0 cfs in 2018.
16. According to the Application, in 2018, the population within Thornburgh Destination
Resort, being the service boundary of Pinnacle, was zero. Piruricle estimates the
populati'dn to increase to an estimated population of 3,500 by the year 2035.
17. According to the Application, their peak demand is projected to be approximately 9.28
cfs of water by the Year 2035.
Given the amount of development remaining under Perrnit G-I7036,the Department has
determined that the permit holder's request to have until October 1,2035, to ctrmplete
construction and to accomplish the application of water to beneficial use under the terrns of
Permit G-17036 is both reasonable and necessary.
2 ORS Slz.6gO applies to ground water permits only.
3 ORS S:Z.OI0(5) applies to surface water and ground water permits.
Proposed Final Order: Permit G'17036 Page 4 of l0
EXHIBIT 10: PROPOSED FINAL ORDER EXTENSION
Good Cause IOAR 690-315-0080(1.1(d and (3.)(a-s\and (4\l
The Department's determination of good cause shall consider the requirements setforth under
oAR 690-s1s-0080(s),
Reasonable Dilieence and Good Faith of the Appropriator /O,4.R 690-31J.0080lJ)/a),/{)1c)
and (4.)l
Reasonable diligence and goodfaith of the appropriator must be demonstrated during the perrnit
period or prior extension period as a part of evaluating good cause in determining whether or
not to grant an extension. In determining the reasonable diligence and goodfaith of a quasi-
municipal water use permit holder, the Department shall consider activities associatedwith the
development of the right including, but not limited to, the items setforth under OAR 690-315-
0080(4) and shall evaluate how well the applicant met the conditions of the p:ermit or conditions
of a prior extension period.
18. Construction of the well began prior to the deadline specified in the permit.
t9.Work accomplished during the original development time frame under Permit G-17036
includes:. resort plaruring:r golf course planning;o applying for necessary permits; ando secwing the required mitigation credits.
Based on FOF 10, 1 1, 18, and 19, the Department has determined that work has been
accomplished prior to permit issuance and within the time allowed in the pennit, which provides
evidence of good cause and reasonable diligence in developing the permit.
20. As of April2,2018, the Application states that an estimated $28,087,618 has been
invested towards development of the Thornburgh Destination Resort.'These costs are
associated with permit fees, land acquisition, planning, and legal fees,, The permit holder
estimates an additional $194,000,000 investment is needed for the completion of this
project.
21.As of April2,2078, none of the 9.28 cfs of water allowed has been appropriated for
beneficial quasi-municipal purposes under the terms ofthis permit.
22.The Department has considered the permit holder's compliance with conditions,
including mitigation requirements, and has identified the following concems:
The record does not show that a totalizing flow meter has been installed.
The record does not show annual water use reports have been submitted to the
Department.
The record does not show a Water Management and Conservation Plan
(consistent with OAR Chapter 690, Division 86), has been submitted within five
years of issuance of Permit G-l7036.
a
a
o
Proposed Final Order: Permit G-17036 Page 5 of 10
23
EXHIBIT 10: PROPOSED FINAL ORDER EXTENSION
Cost to Appropriate and Apply Water to a Beneficial Purpose IOll? 690-.315-0080lj)fb)/
As of April2,2018, the permit holder invested $28,087,618, which is l3 percent ofthe
total projected cost for complete development of this project. The permit holder estimates
an additional $194,000,000 investment is needed for the completion of this project.
The M:arket and Present Demands for W ater f OAR 6 9 0 - 3 1. 5 - 0 0 8 0 (3 ) At and (5 ) fu-fl I
For quasi.municipal water use permits issued after November 2, 1998, in making o
determination of good couse pursuant to 690-315-0080(3)(d), the Department shall also
consider, but is not limited to, the factors in 690-315-0080(5)(a-fl.
The amount of water available to satisS other affected water rights and scenic waterway flows;
special water use designations established since permit issuance, including but not limited to
state scenic waterways, federal wild and scenic rivers, serious water management problem areas
or water quality limited sources established under 33 U.S.C. 1313(d); or the habitat needs of
sensitive, threatened or endangered species" in consultation with the Oregon Department of Fish
and Wildlite I'OAR 690-3 I 5-0080 6t (a-ItJ .
24.The amount of water available to satisft other affected water rights and scenic waterway
flows was determined at the time of issuance of Permit G-17036; furthermore, water
availability for other affected water rights and scenic waterway flows after the permit was
issued is determined at such time that such applicafion for a new water right is submitted.
The points of appropriation for Permit G-17036 are located within the Upper Deschutes
Ground Water Mitigation Area. The points of appropriation for Permit G-l7036,located
within the Deschutes River B.*it, are located above the Deschutes Scenic Waterway.
The points of appropriation are within areas ranked high for stream flow restoration
needs as determined by the Departrnent in consultation with the Oregon Department of
Fish and Wildlife, and are located within a Sensitive, Threatened or Endangered Fish
Species Area as identified by the Department in consultation with Oregon Department of
Fish and Wildlife. The points of appropriation are not in an area listed by the Department
of Environmental Quality as a water quality limited stream.
Economic rnv estment in the pr oiect to date I OA R 6 9 0 - 3 ] 5 - a 0 8 0 ( 5 | 6U .
As of Aprilz,z}l},the Application states that an estimated $28,087,618 has been
invested towards development of the Thornburgh Destination Resort. These costs are
associated with permit fees, land acquisition, planning, and legal fees. The permit holder
estimates an additional $194,000,000 investment is needed for the completion of this
project.
Other economic interests dependent on completion of the project /OlR 690-3l5-0080(.1)(eJl.
26. None have been identified.
25
Proposed Final Order: Pennit G-17036 Page 6 ofl0
28
EXHIBIT 10: PROPOSED FINAL ORDER EXTENSION
Other factors relevant to the determination of the market and present demand for water and
power IOAR 690-3 I 5-00 80(5.t (flJ .
27.Pinnacle Utilities, LLC projects a population increase from zero in 2018 to 3,500 by
2035.
OAR 690-315-0090(3) requires the Department to place a condition on this extension of
time to provide that appropriation of any water (not to exceed the maximum amount
authorized under this permit, being 9.28 cfs) under Permit G-17036 shall only be
authorized upon issuance of a final order approving a Water Management and
Conservation Plan(s) (WMCP) under OAR Chapter 690, Division 86 that grants access to
a greater rate of appropriation of water under the permit consistent with OAR 690-086-
0130(7). o'Development Limitation" condition" is specified under Item 1 of the
"Conditions" section of this PFO to meet this requirement.
F aw R;etarn U p on lnv estment I OA R 6 9 0 - 3 I 5 - 0 0 I 0 ( 3 ) k I I
29.Use and income from the permitted water development project would likely result in
reasonable returns upon the investment made in the project to date.
O ther G ov er nmental Re qair ements I OA R 6 9 0 - 3 1 5 - 0 0 I 0 ( 3 ) (fi I
Prior to issuance of Permit G-17009, and Superseding Permit G-17036, Thombrngh
encountered numerous land use permitting issues, which delayed the issuance of the
Gror:nd Water permit.
31.Between April 3,2013, and January 1,20t8, Pinnacle continued to experience issues
with gaining final approvals of the Master Plan to develop a destination resort and, with
litigation surounding the development of the resort.
32. On January l,2}l8, the Final Master Plan was granted final approval.
Events which Delaved Development under the Permit /OlR 690--31J-0080lJ'(g2l
According to the Application, delay of development under Permit G-17036 was due, in part, to
legal challenges stemming from land use issues and foreclosure, finding availability, and the
economic recession of 2008.
CONCLUSIONS OF LAW
The applicant is entitled to apply for an extension of time to complete construction and
completely apply water to the fi.rll beneficial use pursuant to ORS 537.630(1).
The applicant has submitted a complete extension application form and the fee specified
under ORS 536.050(1Xk), as required by OAR 690-315-0080(1)(a).
30.
1
1z.-
Proposed Final Order; Permit G-17036 Page 7 of 10
EXHIBIT 10: PROPOSED FINAL ORDER EXTENSION
The applicant complied with begin construction timeline requirements pursuant to ORS
537.630 as required by OAR 690-315-0080(1Xb).
The time requested to complete construction and apply water to full beneficial use is
reasonable, as required by OAR 690-315-0080(1)(c).
J
4
5
6.
Completion of construction and full application of water tg beneficial use can be
completed by October 1,20354 pwsuant to OAR 690-315-0080(1Xd).
7
The Deparhnent has considered the reasonable diligence and good faith of the
appropriator, the cost to appropriate and apply water to a beneficial purpose, the market
and present demands for water to be supplied, the financial investrnent made and the fair
return upon the investment, the requirements of other governmental agencies, and
unforeseen events over which the water right permit holder had no control, and the
Department has determined that the permit holder has shown good cause for an extension
of time to apply the water to full beneficial use prusuant to OAR 690-315-0080(1)(e).
As required by OAR 690-315-0090(3) and as described in Finding 28, above, and
specified under Item 1 of the "Conditions" section of this PFO, the appropriation of any
water (not to exceed the maximum amount authorized under this permit, being 9.28 cfs)
under Permit G-17036 shall only be authorized upon issuance of a final order approving a
Water Management and Conservation Plan(s) (WMCP) under OAR Chapter 690,
Division 86 that grants access to a greater rate of appropriation of water under the permit
consistent with OAR 690-086-0 I 30(7).
Proposed Order
Based upon the foregoing Findings of Fact and Conclusions of Law, the Department proposes to
issue an order to:
extend the time to complete construction under Permit G-17036 from October 1, 2018,
to October 1,2035.
extend the time to apply the water to beneficial use under Permit G-17036 from October
l, 2018, to October l, 2035.
Subject to the following condition
continued on following page
a Pursuant to ORS 53':..630(4),upon the completion of beneficial use of water allowed under the permit,..the
perrnittee shall hire a certified water rights examiner to survey the appropriation. Within one year after the complete
application of water to a beneficial use (or by the date allowed for the complete application of water to a beneficial
use), the penniftee shall submit a map of the suvey and the claim of beneficial use.
Proposed Final Order: Pemrit d-n OZe Page 8 of 10
EXHIBIT 10: PROPOSED FINAL ORDER EXTENSION
CONDITIONS
l. Deyelopment Limitations,
No appropriation of water is currently allowed under Permit G-17036. Appropriation of
any water (not to exceed the maximun amount authorized under this permit, being 9.28
cfs) shall only be authorized upon issuance of a final order approving,a Water
Management and Conservation Plan(s) (WMCP) under OAR Chapteq 690, Division 86
that grants access to a greater rate of appropriation of water under the'pemrit consistent
with OAR 690-086-0130(7). The required WMCP shall be submittedto the Department
within 3 years of this Final Order. Use of water under Pennit G-l7036 must be consistent
with this and subsequent WMCP's approved rurcier OAR Chapter 690, Division 86 on
frle with the Department.
The Development Limitation established in the above paragraph supersedes any prior
limitation of the appropriation of water under Permit G-17036 that has been established
under a prior WMCP or Extension final order issued by the Departrnent.
The deadline established in the Extension Final Order for submittal of a WMCP shall not
relieve a permit holder of any existing or future requirement for submittal of a WMCP at
an earlier date as established through other orders of the Department. A WMCP
submitted to meet the requirements of this order may also meet the WMCP submittal
requirements of other Department orders.
DATED: June 5,2018 Ifyou have any questions, please
check the information box on the
last pagefor the appropriate
names and phone numbers.
Water Division Administrator
Pronosed Final Order Hearine Rishts
Under the provisions of OAR 690-3 I 5-0100 and 690-31 5'0060, the applicant or any
other person adversely affected or aggrieved by the proposed final order may submit a
written protest to the proposed final order. The written protest must be received by the
Water Resources Department no later than June 22, 2018, being 45 days from the date of
publication of the proposed final order in the Department's weekly notice.
A written protest shall include:a. The name, address and telephone nurnber of the petitioner;b. A description of the petitioner's interest in the proposed final'order and if the
protestant claims to represent the public interest, a precise statement of the public
1
2
Proposed Final Order: Permit G-L7036 Page 9 of 10
EXHIBIT 10: PROPOSED FINAL ORDER EXTENSION
interest represented;
A detailed description of how the action proposed in the proposed final order
would adversely affect or aggrieve the petitioner's interest;
A detailed description of how the proposed final order is in error or deficient and
how to correct the alleged eror or deficiency;
Any citation of legal authority supporting the petitioner, if knowni
Proof of service of the protest upon the water right permit holder, if petitioner is
other than the Water right permit holder; and
The applicant or non-applicant protest fee required under ORS 536.050.
Within 60 days after the close of the period for requesting a contested case hearing, the
Director shall:a. Issue a final order on the extension request; orb. Schedule a contested case hearing if a protest has been submitted, and:
1) Upon review of the issues, the Director finds there are significant
disputes related to the proposed agency action; or
2) The applicant submits a written request for a contested case hearing
within 30 days after the close of the period for submitting protests.
Notice Regarding Service Members: Active duty service members have a right to stay
proceedings under the federal Service Members Civil Relief Act. 50 U.S.C. App. $$501-597b.
You may contact the Oregon State Bar or the Oregofl Military Department for more inforrnation.
The toll-free telephone number for the Oregon State Bar is: I (800) 452-8260. The toll-free
telephone number of the Oregon Military Department is: I (800) 452-7500. The Intemet address
for the United States Armed Forces Legal Assistance Legal Services Locator website is:
http ://legalassistance.iaw. af. mil
If you have any questions about statements contained in this document, please contagt
Jeffrey D. Pierceall at 503-986-0802.
If you have questions about how to file a protest or if you have previously filed a protest
and you want to know the status, please contact Patricia McCarfy at 503-986-0820.
If you have any questions about the Department or any of its programs, please contact
our Water Resources Customer Service Group at 503-986-0801.
c.
d.
f.
o
-1
a
o
o
a Address any corespondence to:
Fax: 503-986-0901
Water Right Services Division
725 Summer SINE, Suite A
Salem, OR 97301-1266
Proposed Final Order: Permit G-17036 Page 10 of 10
EXHIBIT 11 JEREMY GIFFIN OWRD EMAILS
Cynthia Smidt
From:
Sent:
To:
€c:
Subiect:
IHXTERNAL EMAIL]
GIFFIN Jeremy T * WRD <Jeremy.T.Giffin@oregon.gov>
Tuesday, December 24,20L9 9:21 AM
Cynthia Smidt
GORMAN Kyle G * WRD; NASHEM William D * WRD
File247-\9-000881-SP (Central Land and Cattle Company, LLC)
Cynthia,
The applicants have an active permit (G-L7036) for a full build out rate of 9.28 CFS and 2,!29.0 AF of water use for the
resort. The applicant will need to mitigate for the consumptive use of the permit at several previously determined
increments as shown in their incremental mitigation plan submitted to the Oregon Water Resources Department. For
2019 they were required to have 3.6 mitigation credits purchased for the first increment, which they provided. For years
2020-2024 they are required to provide 24.9 mitigation credits which they still have time to purchase, either through
temporary credits or permanent credits. lf at any time we find the applicant to be appropriating more water than is
allowed per the mitigation plan we will regulate accordingly.
As of the comment period the applicant is in compliance on their water usage and mitigation plan.
Jeremy 6iffin
Deschutes Basin Watermaster District 11
541-306-6885
1
EXHIBIT 11 JEREMY GIFFIN OWRD EMAILS
Jacob Ripper
lo:
Cc:
Sent:
Subject:
From:
Attachments:
Follow Up Flag:
Flag Status:
GIFFIN Jeremy T * WRD <Jeremy.T.Giffin@oregon.gov>
Friday, August 24,2018 B:09 AM
David Arnold (daarnold66@gmail.com)
Jacob Ripper
Permit G-17036 (file G-16385) - Pinnacle Utilities LLC - confirmation of modified
incremental development plan
Finalized lncremental Mitigation Plan G-17036;Thornburgh Resort - Update-
Request-7-10-2018.x|sx;G16835-lncDevPlan-modification-confirmation-2018.pdf;
Finalized lncremental Mitigation Plan G-17036; Thornburgh Resort - Update-
Request-7- 1 0-201 B.pdf
Follow up
Flagged
David/Jacob,
Thornburg has done everything needed to be in compliance and good standing within OWRD in regards to G-1"7036 as
well as purchasing mitigation credits and providing instream flow benefits without even using any water yet. Attached is
a letter confirming the changes to the incremental development plan for Groundwater Permit G-17035 in the name of
Pinnacle Utilities. l've also attached the spreadsheet (pdf version and excel version) referenced in the letter that breaks
the plan down by increment and use type.
On the attached spreadsheet I changed the amount of mitigation required from 4.0 AF to 3.6 AF {correct amount). I also
added a running total for the total volume that may be used under each increment (see rows 38 and 39) for reference
purposes.
Jeremy Giffin
Deschutes Basin Watermaster
t
EX. 12: WATER RIGHTS QUERY PERMIT G-17036
lllc qq. , uljr!li fur {!* , .rr)q.n,.Li€it' irt r}, ..,1tr6,i, .r".,, .r,i&r;:lc r ld iii 9i { sr i r': f *;' r'** : i :: r: {}rr*:"y # *r:irr:'ri
# ii*lp
m {.*ni:r.i l.Jr
**9tt*ct lg,!l$riftfili*tt l(tJ:c!1i$*f;iti{i}s{}...}
v
) Application: G 16385
v Permit: G 17036 document, pip€f_rnep_
F Signature: 4/3/2013
Process Step
Extension Application Received
Completion Date [C Date]
Extension Comment Period Ends
Extension PFO 315 Issued
Extension PFO 315 Issued
Extension PFO 315 Issued
Extension PFO Protest Period Ends
Date Completed Result Com By
JEFFREY PIERCEAI
JEFFREY PITRCFAI
KERRl COPE
KFRRJ COPE
KERRl COPE
KERRl COPE
APPLICATION FOR EXTENS]ON OF TIME G-16385
APPROVING WMCP FOR PINNACLE UTILITIES, LL
WMCP WITHDRAWL OF FINAL ORDER DESCHUTE
COUNTY, PINNACLE UTILITIES, LLC
? Contact information
OWNFR:
D PINNACLE UTILITIES LLC
2447 NW CANYON DR
REDMOND, OR97756
? Prior Contact information
OWNER:
} THORNBURGH UTILITY GROUP LLC
2447 NW CANYON DR
REDMOND, OR 97756
Status: Non-Cancelled
Countyr Deschutes
File Folder Location: Salem
Watermaster Djstrict: 11
$ c a :-r l : t,:S fllvt l* g:l * lttr!
i]*;ir rl{::} <;i' il}ivsr:t io:t
!#la{*.r iti rl il I i :tfi:r*lrti* * {c iirk ro li}'ti::}1}r...}
Extension PFO Protest Period Ends
Extension FO Issued
Extension FO Issued
WMCP FO Issued
WMCP FO Issued
WMCP Progress Report Due
WMCP DUE DAtE (WMCP FO)
WMCP In Effect Until
t Order(s)
D special
Special
tt/25/2030
Order Origin Volume-Page Signature Description
Special
3/9/202t
D
D'
D
view right with !/Veb Mapp-lng
View Places of Use from water Ris,hlgjnj1e Eame_Area
Vi ew ReperlgglwaEet.use
1:ri: i{ i t-,!r: l
{C:}i:,i ii} {:f; i!;:}1i1.....}
} POD 1 -A WELL > DESGHUTES RIVER
} POD 2 -A WFTL> OTJCKHORN CANYON
} POD 3.A WELL > BUCKHORN cANYoN
} POD 4 -A WELL > BUCKHORN CANYON
l Pop s - A WELL > BUc{!{pltN_cANYoN
} POO 6 - A.IivELL > DEIPIANYoN
?_ tlii.tlii:J r-ji 1-;:!t-:
Add'l"RS grqupllg
l Use - QUASI-MUNICIPAL USES
(Primary); Priority Date; 2 / 9 / 2OO5
i"r-App_*al03gg
it-Permil: G '17009 CN
--Permit: G 17036 *
4/2/2018
4/3/2078
5/3/20t8
s/B/2018 Propose to Deny
s/22/20t8 Withdrawn
6/s/2018 Propose to Approve
6/22/2018 Propose to Deny
7/20/2818 Propose to Approve
LO/26/201A Approved
7/31/20L9 Withdrawn
rt/24/2020
3/9/2027 Withdrawn
tt/25/2025
s/2s/2030
109-810 L0/26/2018
1 1B-1 17 tL/74/2020
View Water Rights in same Family Report Errors with Water Right Data
EX. 12: WATER RIGHTS QUERY PERMIT G-17036
EXHIBIT 1
-
*F tl
3: JAN NEUMAN LETTERTONI€N
TORP
Janet E. Neuman
janet,ne uman@tonkon-com
503.802.5722 direct
503.221.144O main
July 8, 2020
VIA EMAIL: william.groves@)deschutes.org
William Groves
Deschutes County Board of County Commissioners
1300 NW Wall St
Bend, OR 97703
Re: Application 247 -19-000881-SP/Thornburgh Resort/Rebuttal
Dear Commissioners Adair, DeBone, and Henderson:
I am water rights counsel for Mr. Kameron Delashmutt, Pinnacle Utilities, LLC,
and Central Land & Cattle Company, LLC, the Applicant in the above-referenced
file ("Applicant"). I am submitting this letter on my clients' behalf during the
rebuttal period for this matter. This letter addresses only water issues; Mr.
Delashmutt and his land use counsel, Ms. Fancher, will provide additional rebuttal
material.
1. Permit G-17036 is curuently valid.
Appellant Gould continues to argue that Applicant's water rights permit G-17036
"has expired." GouldT-l-2020 Submission on Water Use and Availability, from
Karl Anuta ("Gould/Anuta"), at 2. That is not correct. Permits do not expire
automatically. Crucially, Mr. Delashmutt/Pinnacle Utilities filed an application
for extension of the permit in April of 2018 prior to the expiration date, thereby
tolling the permit's expiration. See Exhibit H-4, OWRD Water Right Permit Query.
Even without any extension application, OWRD must take affirmative action to
cancel the permit under ORS 537.260(1) and ORS 537.410-537.45O, including
providing notice and a hearing. OWRD has not done so here. Mr. Anuta's comment
that the permit "has not yetbeen cancelled" (Gould/Anuta, supra at 2; emphasis in
original) is beside the point, since OWRD could not initiate cancellation proceedings
in any event while the extension application is pending.
Ms. Gould's insistence that "no extension of that permit currently exists" because
OWRD withdrew its Final Order approving the extension is also misleading.
Gould/Anuta, id. The withdrawal of the Final Order did not operate as a denial of
the extension application-instead, its withdrawal leaves the Proposed Final Order
("PFO")-which proposed to approve the extension-as the currently applicable
OWRD decision, as Ms. Gould acknowledges. Id.; see olso Applicant's Exhibit I
(PFO). Ms. Gould protested the PFO and the matter will be referred to a contested
I0rlkun J0rp l-tp i Arivfi.4tei [, &di,bar: I ffS!; :;t].t tilth 4v{'. i ir,{{s }6ixt I l't:rll**r.i GF q7:S$ i lttrk$rr,rr:n
EXHIBIT 13: JAN NEUMAN LETTER
July 8, 2020
Page 2
case for resolution. Unless and until this process results in a final decision
overturning the PFO and denying an extension, Permit G-17036 remains in place,
as shown in the records of OWRD and confirmed on two occasions by OWRD staff in
this case. See Applicant's Exhibits O and 6 (Emails from Jeremy Giffin, OWRD).
Ms. Gould simply refuses to acknowledge OWRD's own statements about the status
of the permit.
None of the materials submitted by Ms. Gould during the open record period prove
otherwise. The June 25,2020 email from Kyle Gorman, OWRD, to David Arnold
confirms the facts described above-that Pinnacle applied for an extension in April
of 2018 and that, due to the withdrawal of the Final Order, the operative pending
document is the June 5, 2018 PFO proposing to approve the extension; this PFO is
awaiting a contested case hearing on Ms. Gould's protest.l
Mr. Gorman's email also confirms that Permit G-17036 is in compliance with its
water quantity mitigation obligations to date and that further mitigation is only
required when pumping occurs. At no point does Mr. Gorman take issue with his
own agency's previous submissions to the County stating that Permit G-17036 is in
place and in good standing. He also clarifies that the only requirement for pumping
water under the Incremental Development Plan (IDP) is posting the mitigation
water the IDP requires.
The proof of applicant's water quantity and quality mitigation
is satisfactory, and not subject to collateral attack in the
proceedings on this Site Plan.
Appellants Gould, Central Oregon Land Watch ("COLW"), and others continue to
attack the sufficiency of Applicant's agreement to use Big Falls Ranch water for
mitigation of impacts to fish and wildlife, as well as quantity mitigation. First, this
represents a collateral attack because the adequacy of this agreement for
mitigation was determined when the FMP was approved. At this phase, all that is
required is for Applicant to update the status of his water right permit and
mitigation, which Applicant has done.
Even assuming for the purpose of argument that Applicant needed to make this
showing again, Appellants'claims fail. The main argument to date has been that
the contract is "secret" because only a memorandum of it has been provided and not
the whole document.
1 Mr. Gorman's email also states that Big Falls Ranch was allowed to change
its point of diversion from a surface point of diversion ("POD") to a groundwater
point of appropriation ("POA"), but that the change does not determine whether the
rights are surface water rights clr groundwater rights.
2
r
litr*8
E
EXHIBIT 13: JAN NEUMAN LETTER
July 8, 2020
Page 3
As I stated in my August 9, 2019 letter to Mr. Ripper on the Tentative Plan
"Pinnacle has a fully-executed, in-place agreement with Big Falls
Ranch to obtain water rights for the Thornburgh Resort Project, as
described in the recorded Memorandum of Agreement included in
Applicant's burden of proof. The amount of water that has been
secured from Big Falls considerably exceeds the amount needed for
the Phase A-1 Development. In addition, as part of its agreement
with Pinnacle, Big FaIIs has already removed the impoundment
from Deep Canyon Creek and ceased pumping any water from the
creek, thus allowing all of the cold spring water to flow directly to
the Deschutes River."
I assisted Mr. Delashmutt in drafting his agreement with Big Falls Ranch and I
stand by this statement. There is nothing in the Code that entitles project
opponents to know the details of Mr. Delashmutt's business deals-and certainly
nothing that entitles them to learn sensitive business or financial information
pertaining to the third parties in those transactions. Given the history of this
matter, the BOCC can surely appreciate the reluctance of third parties to be
dragged into the fight and to have every aspect of their business and transactions
picked apart.z
Ms. Gould now also argues that because the water rights were included as security
for a loan that Applicant has "impaired its ability to obtain or control any water or
water rights for the project or this phase of it." Kleinman Memorandum, supra note
2, at 4. This issue was resolved in the CMP and FMP and is a collateral attack on
those prior approvals. At the time those approvals were granted, Applicant's
property was already posted as security for loans. Neither approval placed any
conditions on the Applicant regarding the use of the land or other assets to secure
loans. Further, this argument flies in the face of the obvious need for financing for
a project of this magnitude, and of standard business practices which routinely post
property as collateral for such financing. According to the agreement's terms,
Applicant is still in control of his property in the absence of default.
Appellants attempt to move the goal posts in another way regarding the Big Falls
Ranch water. They have argued before that Applicant and his attorneys falsely
stated that the impoundments on Deep Canyon Creek have been removed. The
2 For instance, Ms. Gould says that "mitigation water will not be available
after December 1 of this year" even though the quoted portion of the agreement
explicitly allows for extension. JuIy L 2A20 Memorandum from Jeffrey Kleinman to
Deschutes County Board of Commissioner on behalf of Ms. Gould
("Gou1diKleinman"), at 3-4.
I-s&t
F
)19
EXHIBIT 13: JAN NEUMAN LETTER
JuIy 8, 2020
Page 4
record is clear that Big Falls Ranch has ceased impounding and diverting water
from the creek, and removed its water control head gates. Even opponents have so
admitted. See, e.9., David Arnold Email to William Groves, July 1, 2020,2:36 PM,
at page 4 (acknowledging that head gate has been removed); Exhibits 32 and 39,
submitted on July I,2020, by Mr. Delashmutt (showing that opponent Sage
Dorsey's own photos prove that the head gate was removed). To the extent that
water continues to back up to some degree it is due to beaver activity. See, e.9.,
Applicant's Exhibits 32, 39, id., and Lind Email supra, at 2 (statement from Jeremy
Giffin that beavers had "reclaimed the dams").
Mr. Arnold also complains about the concrete abutments that are still in place in
Deep Canyon Creek, even though the head gate itself has been removed. Again,
these argurnents are collateral attacks on the FMP and FWMP. LUBA has held
that monitoring the FWMP comes from the annual reporting that the plan requires,
not the approval process, See Exhibit G. More importantly, the actions taken to
date, to cease pumping from Deep Canyon Creek and to stop impounding the water,
are mitigation actions taken years in advance of when required to meet the no net
loss standard.
So now appellants argue that there is no proof of what the actual flow is from the
creek to the river. COLW Letter to BOCC, June 3O,2O20; Yancy Lind Email to
William Groves, July 1, 2020,2:52P}l/'. This new argument is also a collateral
attack on the FMP. Ms. Gould raised this issue during arguments on the efficacy of
the FWMP in the FMP proceedings. See Exhibit 25. Her claims failed. Similarly,
COLW could have raised the issue at that time as well. They cannot use the
current site plan process to make a belated argument on the FWMP/FMP and this
argument should not be credited.
Furthermore, the claim that stopping withdrawals from Deep Canyon Creek is
somehow not providing quantifiable mitigation ignores the fact that Big Falls
Ranch was previously permitted to divert 1,859.6 acre-feet of "wet" water from
Deep Canyon Creek during every irrigation season.s It has ceased doing so,
removed its head gate, and instead is allowing all of that water to flow through the
head gate to the Deschutes River (interrupted only by the beavers). David Newton,
author of the FWMP, explained that this change provides the bulk of the required
mitigation for 100% of the pumping anticipated under the FWMP. See Exhibit Q,
Newton letter, September 25,2AI8. Even though the mitigation needed for this site
plan is a mere fraction of the mitigation water already returned to Deep Canyon
3 Mr. Giffin, OWRD, told Mr. Lind that the landowner had been "ready,
willing, and able to pull the full water right." Lind Email, id., at page 2 (attaching
July 1, 2020,9:08 AM email from Giffin to Lind).
mFiil.s*
F
}{-i
EXHIBIT 13: JAN NEUMAN LETTER
July B, 2020
Page 5
Creek, the project opponents routinely dismiss it, or attempt to undermine its
value. See Exhibit AA, Mitigation Debit Table.
3.The Water Management and Conservation Plan does not
provide any basis for attacking the Site Plan.
Ms. Gould and Mr. Arnold seem to offer the Resort's Water Management and
Conservation Plan ("WMCP") for two purposes-to "prove" that no water use has
yet occurred, which Applicant does not dispute, and to try to focus attention on the
amount of water and mitigation that will be required during peak use at full
development of the resort, which is not pertinent to review of this Site Plan. The
relevant amounts of water use for this phase of development are shown in Exhibit
AA, previously submitted by Applicant with its application and attached here for
convenience. The water needed for this site plan is only a fraction of the amount
that Big Falls Ranch has already ceased diverting and allowed to remain in Deep
Canyon Creek, and it is a small part of the peak water needs that Mr. Anuta cites
on the first page of his 7loLlz} Submission that he states are "undisputed". His
comments are misleading.
Mr. Arnold seems not to understand the timing of either the proposed water use or
the required mitigation, arguing that a final WMCP is required now and that full
mitigation must also be provided now. No mitigation is needed until the project
begins pumping water. This argument was also made by opponents during review
of the CMP. At that time, the BOCC determined that mitigation is not required
until OWRD requires it. That issue is resolved, yet it is raised again.
4. Conclusion.
To borrow a phrase from project opponents and Appellants, "the bottom line" is that
Applicant has provided all of the information required of it pertaining to the status
of its water right and mitigation in support of approval of the Site Plan.
Appellants' and others'arguments to the contrary recycle settled issues and
misstate the status of OWRD proceedings.
Sincerely,
sl Janet E. Neuman,
Janet E. Neuman
Senior Counsel
JEN/jw
n:
035992/ffm01/i I ilI 86t]5v1
TI-
EXHIBIT 13: JAN NEUMAN LETTER
ExHlBlT AA: MITIGATION DEBIT TABLE
Application (Phase)
Water
(acres)
Mitigation
(acre feet)
Phase A-1 Tentative Plan 28 50
Golf Course Lake Site Plan 84 151
Total Ltz 20L
Mitigation Permitted (req)1,356
Mitigation remaining 1,155
EX. 13 NEUMAN LETTER RE: WMCP ORDER ON RECON
n I
503.802.5722 direct
503,221,1440 main
May 19, 2021
HAND DELIVERED
William Groves, Senior Planner
Deschutes County Community Development
117 NW Lafayette Avenue
Bend, OR 97703
Re: Kameron Delashmutt/Central Land and Cattle, LlC/Pinnacle Utilities
Dear Mr. Groves
I represent Mr. Kameron Delashmutt, Central Land and Cattle, LLC ("CLC"), and
Pinnacle Utilities, LLC "Pinnacle"), on water rights matters. This letter is
submitted as part of the Burden of Proof for the Overnight Lodging Site Plan
Application for Thornburgh Resort.
Attached to this letter is an Order on Reconsideration issued by the Oregon Water
Resources Department ("OWRD") on May 7,2021("Order"), approving Pinnacle's
Water Management and Conservation Plan ("WMCP") for the Thornburgh Resort.
The Order states that the plan "is approved and shall remain in effect until May 7,
2A31 . . . ." Order at page 3.
The Order fi.nds that "the plan was required by a condition set forth under Permit
G-17036." The Order further finds that "the projections of future water need in the
water management and conservation plan are reasonable and consistent with
available land use plans and Pinnacle Utilities, LLC has demonstrated a need to
divert water under Permit G-17036 during the next 20 years." Order at pages 1-2.
These statements confirm that Permit G-17036 is still in full force and effect at this
time.1
Sincerely,
sl Janet E. Neu,man
Janet E. Neuman
Of Counsel
r The Order clarifies that a WMCP could also be required by "extension
development limitation conditions" included as part of an extended permit, but
notes that Pinnacle does not fall into that category at this time, as its requirement
for a plan comes from its existing permit, not an extended permit.
TONKON
TORP
Janet E. Neuman
Of Counsel
janet,neuman@tonkon,com
j.,.li,,. .ii, :i lr ,1 ,. 1; 'r.:,,1 ,. J -rl\ '-it13 lr;'illl i! 1, , ;'. :rr":l , r t
EX. 13 NEUMAN LETTER RE: WMCP ORDER ON RECON
BEFORT TIIE WATER RESOURCES DEPARTMENT
OF THE
STATE OF OREGON
In the Matter of the Proposed Water )
Management and Conservation Plan for the )
Pinnacle Utilities, LLC, Deschutes County )
ORDER ON RECONSIDERATION
APPROVINGA WATER
MANAGEMENTAND
CONSERVATION PLAN
Authority
OAR Chapter 690, Division 086, establishes the process and criteria for approving water
mana:ggment ar.rd conservatiogp,f-4p requiredlqrder-tbe*conditipns of permits, pemiJ extensions
and other orders ofthe Deparbnent.
Findings of Fact
1. Pinnacle Utilities, LLC submitted a Water Management and Conservation Plan (plan) and the
required statutory fee for review of the plan to the Water Resources Departrnent
@epartment) on February 26,2A2A. The plan was required by a condition set forth under
Permit G-17036.
2. The Departrnent published notice of receipt of the plan on March 10,202A, as required under
OAR Chapter 690, Division 086. The deadline for public comments on the plan was April 9,
2424.
3. Nine timely comments were received by the Deparknent on Aprii 9,202A, from the
following individuals: Kari G. Annut4 representing Annunziata Gould; Thomas Bishop;
Wendy Krebs; Jean Carlton; Steven Carlton; Jill Mora-Lambert; Gerald Lambert; Paul
Lipscomb; Gail Burton; and Gregg Riegel.
4. On April 17,2A20, the Department provided its written comments on the plan to the Pinnacle
Utilities, LLC, as well as all timely public comments received consistent with OAR 690-086-
0120(5). In response, Pirmacle Utilities, LLC submitted a revised plan on October 13,2020.
OWRD reviewed the revised plan on October 26,202A and determined that all applicable
approval criteria under OAR 690-086 had been met; therefore, Pinnacle Utilities, LLC
finalized the revised plan and submitted it to the Deparlment onNovember 5,2020.
5. The revised plan meets the criteria for approval under OAR 690-086-0130, and includes each
of the required elements under OAR 690-086-0125:
This is a final order in other than a contested case. This order is subject to judicial review under ORS 183.484. Any
petition for judicial review must be filed within the 60-day time period specified by ORS 183.484(2). Pursuant to
ORS 536.075 and OAR 137-004-0080, you may petition for judicial review or petition the Director for
reconsideration ofthis order. A petition for reconsideration may be granted or denied by the Director, and ifno
action is taken within 60 days following the date the petition was filed, tho pelition shall be deemed denied.
Page 1 of3 Special OrderVolume 120, Page 51 *
EX. 13 NEUMAN LETTER RE: WMCP ORDER ON RECON.
i. The projections of future water need in the water management and conservation
plan are reasonable and consistent with available land use plans and Pinnacle
Utilities, LLC has demonstrated a need to divert water under Permit G-17036
druing the next 20 years,
ii. For each of the water conservation measures required under OAR 690-086-
0150(4) and, as applicable, OAR 690-086-0150(5), the plan includes a reasonable
and appropriate schedule with five-year benchmarks for implementation of
conservation activities.
iii. The elements of OAR 690-086-0150(5) do not apply to the revised plan as
Pinnacle Utilities does not hold an extended pemrit and no extension development
limitation conditions are imposed at this time. Additionally, there is no
population currently served under Permit G-17036. Therefore, in accordance with
- OAR 690-086-0150(5), there- is no requirement at this time for the reyised p-lan to
request removal or modification of a development limitation under Permit
G-17036 to divert water under the permit.
The identification of resource issues under OAR 690-086-0140(5Xi) is acctnate
and complete; and
The water curtailment element included in the revised plan satisfactorily promotes
water curtailment practices and includes a list of three stages of alert with
concurrent curtailment actions.
vi. The elements of OAR 690-036-0130(7) and (8) do not apply to the revised plan
because Pinnacle Utilities does not hold an extended permit and no extension
development limitation conditions are imposed at this time. Therefore, there is no
requirement at tlis time for the revised plan to request removal or modification of
a development limitation under Permit G 17036 to divert water under the permit.
6. The Deparknent issued a final order approving the Pinnacle Utilities, LLC final revised plan
on November 24,2020
7. On January 23,2A2L, Annunziata Gould filed a Petition for Judicial Review in the Marion
Co.*ty Ciicuii Court (21CV02770).
8. The Department withdrew the final order approving the final revised plan on March 9,2021.
9. The Deparknent reviewed the revised plan and all timely comments received, and confirmed
that Pinnacle Utilities, LLC does not hold an extended permit and no extension development
limitation conditions ffs imposed at this time. Additionally, there is no population cunently
served under Permit G-77A36, and Pinnacle Utilities, LLC is not requesting authorization to
initiate or increase the appropriation of water under an extended permit. Therelore, the
Department finds that the revised plan is consistent with the requirements of OAR Chapter
690, Division 086.
iv
v
Page2 of3 Speciai Order Volume 120, Page +15
EX. 13 NEUMAN LETTER RE: WMCP ORDER ON RECON
Conclusion of Law
The final revised Water Management and Conservation Plan submitted by Pinnacle Utilities,
LLC is consistent with the criteria in OAR Chapter 690, Division 086.
Now, thereforeo it is ORDERED:
Duration of Plan Anproval:
1. The final revised Pinnacle Utilities, LLC Water Management and Conservation Plan is
approved and shall remain in effect until May 7rZA3l, unless this approval is rescinded
pusuant to OAR 690-086-0920.
PIan Update Schedulei
2. Pinnacle Utilities, LLC shall submit an updated plan meeting the requiremenls of OAR
.-Chapter"-690, Diy'.rsion 086" (effective Dece"mher 23,,2018) ivjthin 10 years and.no later.than -
November 712030,
Progress Report Schedule:
3. The Pinnacle Utilities, LLC shall submit a progress report containing the information
required under OAR 690-086-0120(4) by May 7,2026.
Other Requirements for Plan Submittal;
4. The deadline established herein for the submittal of an updated W"ater Management and
Conservation Plan (consistent with OAR Chapter 690, Division 086) shall not relieve the
Pinnacle Utilities, LLC from any existing or fu1ure requirement(s) for submittal of a Water
Management and Conservation Plan at an earlier date as established through other final
orders of the Department.
Dated at S Oregon this fVlo.,,7 z0 zt,-t
Dwight Water Right Services Division Administrator for
TI{OMAS M. BYLER, DIRECTOR
Oregon Water Resources
Mailing date
Notice Regarding Service Members: Active duty service members have aright to stay these
proceedings under the federal service members Civil Relief Act. For more information, contact
the Oregon State Bar at 800-452-8260, the Oregon Military Deparknent at 503-584-3571 or the
nearest United States Armed Forces Legal Assistance Office through
http:l/iegalassistance.law.af.mil. The Oregon Military Deparbment does not have a toii-free
telephone number.
Page 3 of3 Special Order Volume tZO, Page rt'? ln
Mitigation(acre feet)50.0151.010.8zLt.8l_,3 5 6L,t44EXHIBIT 14: MITIGATION DEBITTABLEWater(acres)28.084.06.0118.0ApplicationPhase A-1 Tentative PlanGolf Cou rse & Lake Site Planlnitial Golf Cabins (2a)TotalMitigation Permitted (req)Mitigation remaining
FI3,200252525102680%G3,20030302:5B0o/o2a1'55262526F4,50040403075o/o1556,000604i$3570e/o252810e6E8,;000v045357Aolo3020:1026301010:000BO5040660/o2526T HORNBURGH RES ORTapETraLuAgTa fl-ANflEflDENIUL LOTSTAMAffi EXH|B|T B-24 aDESCHUIES CA)NTY oFlEOOt'tB12,500 ,9055i40,65Yo3025i15266030251526A15,0001005065o/rMaximum)Lot'sNIo?t\s(lIffirrrde,sacLot-\€-{'Area (MinimurnLotWidth Averase (Minimum)Lot Coverase - FostprintFrontoIo$oSideBuilding Height* (maxirnum)* depends on location
EXHIBIT 16: ODOT COOPERATIVE IMPROVEMENT AGREEMENT
Misc. Contracts and Agreements
No,22937
CONTRIBUTION AGREEM ENT
US 20 Transportation lmprovements
Central Land and Cattle Company, LLC
THIS AGREEMENT is made and entered into by and between the STATE OF OREGON'
riting by and through its Department of Transportation, hereinafter referred to as "State;"
anO inornburgh R6sort Companyp LLC now doing business as the Central Land and
Catle Compa-ny, LLC an Oregon limited liabiiity company acting by and through its
officers, hereinafter referred to as "Develope/' herein refened to individually or collectively
as "Pat1y" or "Parties."
RECITALS
1. The McKenzie-Bend Highway, US 20, State Highway No. 17 is a part of the state
highway system under the jurisdiction and control of the Oregon Transportation
Commission (OTC).
Z. Cook Avenue and Cline Falls Highway are a part of the county road system
under the jurisdiction and control of Deschutes County.
3. Developer owns approximately 1 ,980 acres of land in Deschutes County, located
adjacent io Cline Butte outside of Redmond, Oregon, and mole particularly
described on Exhibit A, attached hereto and incorporated by this reference
(,'Croperty"). On February 16,2005, Developerfiled a land use application, CU-05-
)O nereinatter referred to as the "Application", with County, seeklng development
approval for a Conceptual Master Plan ("CMP") to develop a destination resoft
["tiesort") on the property. The proposed resort, hereinafter referred to as the
;Resort", will include three 18-hole golf courses, 950 single-family dwelling units, 475
units oi overnight accommodations, recreational amenities and associated
infrastructure, The location and boundaries of the Resort are depicted on Exhibits A
"nJ
g, attachbd hereto and by this reference made a part hereof, This application
was approved by the Deschutes County Board of Commissioners on May 10, 2006.
Developer subsequently filed an additional application to approve the Final Master
plan (FMp), The FMP was approved by Deschutes County an 11112Q18 and is
pending on appeal before the Oregon Land U'se Board of Appeals, The CMP
Applica-tion included, Traffic lmpact Analysis report, completed in 2005 by Group
Mackenzie, lnc. hereinafter referred to as "Traffic Analysis", The Traffic Anatysis
concluded that:
, Traffic from the development of the Resort will contribute additional
vehicular traffic at the US 20 - Cook Avenue (Cline Falls Highway)
intersection including twenty-iwo' (22) percent of what are
characterized by ODOT -as the "critical turning mgvements"
requiring modifications to the intersection, and
Key No.
03-02-15
LUBA 2018-140 Record - Page 1070
EXHIBIT 16: ODOT COOPERATIVE IMPROVEMENT AGREEMENT
Central Land and Cattle Company, LLC IODOT
Agreement No. 22397
o Traffic from the development of the Resort will require construction' of a west-bound lefi turn lane and an east-bound right turn lane at
Highway 126 and Eagle Crest Blvd'
4, The Deschutes County Transportation System Plan includes a project for
construction of an interchange at the US 20 and Cook Road intersection, The
additional traffic derived from the development of the Resort will require construction
of these planned improvements at US 20 and Cook Road.
b. ODOT and Developer entered into a 2005 Memorandum of Understanding,
Agreernent Number 22759 in which Developer agreed to make a financial
commitment of up lo 22o/o towards the costs of the transportation improvements for
the interchange at US 20 and Cook Road and to construct a west-bound left turn
lane and an east-bound right turn lane at Eagle Crest Boulevard,
6. ln approving Application CU-05-20, the Deschutes County Board of
Commissioners imposed condition of approval #29 requiring Developer to abide by
that 2005 MOU. This Cooperative lmprovement Agreement is intended to
implement the terms of that MOU to meet the requirements of Deschutes County
Condition of Approval #29.
T. Since 2005, the west-bound left turn lahe and an east-bound right turn lane at
Eagle Crest Boulevard have been constructed, Because these irnprovements are
coristructed they are no longer part of the mitigalion needed to meet the condition of
approval #29 tor CU'05-20 and are not part of this Agreement.
B. Preliminary plans for an interchange at the lntersection have been made and
costs estimated, These estimates, along with the impacts shown in the Traffic
Analysis provide the basis for the contribution. The parties agree that ODOT and
Desihutes County wlll revisit the interchange project at US 20 - Cook Avenue (Cline
Falls Highway) intersection by initiating an lntersection Study to reexamine the
interchange design and consider alternative intersection lmprovements. The
lntersection Study shall be completed in 2019.
9. By the authority granted in Oregon Revised Statutes (ORS) 190,110.366'572
anO 3OO.SZO, State may enter into cooperative agreements with counties, cities and
units of local governments and ORS 366.205 to enter into contracts for the
performance of work on certain types of improvement projects with the allocation of
costs on terms and conditions mutually agreeable to the contracting parties.
10. By the authority granted in ORS 966,425. State may accept deposits of money or
an irievocable letter of credit from any county, city, road district, person, firm, or
corporation for the performance of work on any public highway within the'State.
When said money or a letter of credit is deposited, State shall proceed with the
Project. Money so deposited shall be disbursed for the purpose for Which it was
deposited.
2
LUBA 2018-140 Record - Page 1071
EXHIBIT 16: ODOT COOPERATIVE IMPROVEMENT AGREEMENT
Central Land and Cattle Company, LLC IODOT
Agreement No. 22397
NOW THEREFORE, the premises being in general as stated ln the foregoing Recitals,
it is agreed by and between the Parties hereto as follows:
TERMS OF AGREEMENT
1. The Parties agree that Developer will mitigate the transportation impacts associated
"with the development of the Resort by contributing funds to transportation
infrastructure improvements to be constructed by ODOT at the US 20 - Cook
Avenue (Cline Falls Highway) intersection, hereinafter referred to as "Project". The
Project includes construction of an interchange at US 20 and Cook Road. A
preliminary estimate of the cost of these improvernents is $5,113,636.36. The
proportionate share to Developer is 22 percent of the final estimated construction
costs in an amount not to exceed $1,125,000.
2. The Project may be replaced by alternative intersection improvements,
recommended by the lntersection Study. Should an alternative intersection
improvement be adopted into the TSP, Developefs contribution for the alternative
intersection improvement project shall be 22 percent of the cost of the project and
shall not exceed $1,125,000.
3. To meet the County's condition of approval Developer shall contribute up to a
maximum surn of $1,125,000 towards the Project under the following terms,
3,1 Developer shall pay ODOT $300,000 (hereln after "lnitialPayment")
within 3 months of recording the final plat of the first residential
subdivision of the Resort property,
Beginning with the sale of the 101't single-family lot ("Lot") in the
Resort, Developer shall pay ODOT the sum of $1,650 and a like
amount for each lot sold thereafter for the next 500 lots at the time
of the closing of lot sales (the "Lot Fee"). lf ODOT has not begun
construction of the intersection improvements at that time, the
funds paid will be held in a segregated trust account for payment to
ODOT upon commencement of work on the intersection
improvement.
3,3 As part of its application for final plat approval, Developer must
demonstrate to County that all Lot Fees have been paid to ODOT
or the trust account, whichever is applicable, Compliance with this
section may be required as a condition of approval of the final plat
in any tentative plan approval issued by Deschutes County, until
Developer's financial.obligations under this agreement have been
met in full.
3.2
3
LUBA 2018-'140 Record - Page 1072
EXHIBIT 16: ODOT COOPERATIVE IMPROVEMENT AGREEMENT
Central Land and Cattle Company, LLC /ODOT
Agreement No, 22397
3.4 Should the final actual construction cost of the Project be less than
$5,113,636.36, then ODOT will return a proportionate share to
Thornburgh. ln no event shall Developer's contribution exceed
$1,125,000.
4. Contingent Obligations. The obligations of Developer contained herein are
contlngent upon the following:
4.1 Approval of the Resort Final Master Plan, perrnitting of
development and construction of the Resort (tentative plan
approvals, site plan approvals) substantially as approved by the
Final Master Plan,
Continued approval from BLM of final Right of Way grants allowing
the construction and long term Resort use of roadways across
federally owned lands providing access to the Resort,
4.3 Continued lease of lands owned by the Oregon Department of
State Lands under Special Use Lease that allows for the Resort's
construction and long term use of roadways across DSL lands.
5. The term of this Agreement shall begin on the date all required signatures are
obtained and shall terminate upon completion of the Project and final payment or
twenty (20) calendar years following the date all required signatures are obtalned,
whichever is sooner,
DEVELOPER OBLIGATIONS
1. Developer shall within three months of recording the final plat of the first residential
subdivision of the Resort property, forward to State an advance deposit or irrevocable
letter of credlt in the amount of $300,000, (lnitial Payment) .Developer agrees to make
additional deposits as described in TERMS OF AGREEMENT Paragraph 3.2, Any
payment of the Contribution due from Developer as set forth in this Section 1 shall
accrue interest at the maximum rate permitted under ORS 293,462, as it may be
amended or replaced from time to tlme, from the date the payment is past due until the
past-due payrnent and all interest thereon are paid in full.
1, Developer certifies and represents that the individual(s) signing this Agreement has
been authorized to enter into and execute this Agreernent on behalf of Developer,
under the direction or approval of its governing body, commission, board, officers,
members or representatives, and to legally bind Developer.
2. Developer shall not assign, delegate or othenrvise transfer any of its rights or
obligations under this Agreement wlthout first obtaining the written consent of State
which State rnay not unreasonably withhold. This Agreement is binding upon and inure
to the benefit of each of the pafties, and, except as otherwise provided their permitted
legal successors and assigns and runs with the property.
4.2
4
LUBA 2018-140 Record - Page 1073
EXHIBIT 16: ODOT COOPERATIVE IMPROVEMENT AGREEMENT
Central Land and Cattle Company, LLC iODOT
Agreement No. 22397
3. Developer's Project Manager for this Project is Kameron Delashmutt, 2447 NW
Canyon, Redmond Oregon, 541-350-8479, Kameron@bendcable.com, or assigned
designee upon individual's absence. Developer shall notify the other Parties in writing
of any contact information changes during the term of this Agreement.
4. Within 45 days of end of each calendar year, , Developer will provide
documentation to ODOT and Deschutes County that certifies compliance with the
payment of the Lot Fees as required herein. The documentation will show the Lots
sold, the date sold, the payments made to ODOT and the date of said payments.
STATE OBLIGATIONS
1. State, or its consultant, shall conduct the necessary field surveys, environmental
studies, traffic investigations, preliminary engineering and design work required to
produce and provide final plans, specifications and final cost estimates for the
highway Project; identify and obtain all required permits; perform all construction
engineering, including all required materials testing and quality documentation;
prepare all bid and contract documents; advettise for construction bid proposals;
award all contracts; pay all contractor costs, provide technical inspection, project
management services and other necessary functions for sol'e administration of the
construction contract entered into for this Project.
2. State shall be responsible for the construction and installation of the Project,
3. Upon completion of the Project, State shall provide an itemized statement of the
actual total cost of the Project, Should the final estimated construction cost of the
Project be less than $5,113,636,36 State will return a proportionate share to
Developer. Developer's proportionate share is 22o/o.
4, State shall contribute to the lntersection Study and will work in good faith to
complete that Study,
5. State's Project Manager for this Project is Bob Townsend - Area Manager, 63055 N.
Highway 97, Bend Oregon 97703, (541)388-6252,
Robert.L.Townsend@odot.state,or.us, , or assigned designee upon individual's
absence. State shatl notify the other Party in writing of any contact information
changes during the term of this Agreement.
DEFAULT
1. lf Developer has failed to pay the initial payment in Section 3,1 or any Lot Fee as
agreed herein, ODOT can provide a notice to Developer giving them 10 days to cure
any default. lf Developer does not cure the default within that time then the entire
sum due under this agreement ($1,125,000 less payments made)will becorne due
and payable.
5
LUBA 2018-140 Record - Page 1474
EXHIBIT 16: ODOT COOPERATIVE IMPROVEMENT AGREEMENT
Central Land and Cattle Company, LLC /ODOT
Agreement No. 22397
GENERAL PROVISIONS
1, This Agreement may be terminated by mutual written consent of the Parties.
2. State may terminate this Agreement effective upon delivery of written notice to
Developer, or at such later date as may be established by State, under any of the
following conditions:
a. lf State fails to receive funding, appropriations, 'limitations or other
expenditure authority sufficient to allow State, in the exercise of its
reasonable administrative discretion, to continue to rnake payments for
pdrformance of this Agreement.
b. lf federal or state laws, regulations or guidelines are modified or
interpreled in such a way that either the work under this Agreement is
prohibited or State is prohibited from paying for such work from the
planned funding source.
3. Any termination of this Agreement shall not prejudice any rights or obligations
accrued to the Parties prior to termination.
4. lf any term or provision of this Agreement is declared by a court of competent
jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms
and provisions shall not be affected, and the rights and obligations of the Parties
shall be construed and enforced as if this Agreement did not contain the particular
term or provision held to be invalid.
5, Any claim, suit, action or proceeding between ODOT (or any other agency or
departrnent of the State of Oregon) and Developer that arises from or relates to this
Agreernent shall be brought and conducted solely and exclusively within the
iuiisdiction of the Circuit Court of Marion County in the State of Oregon- ln no event
shall this Section be construed as a waiver by the State of Oregon of any form of
defense or immunity, whether sovereign immunity, governmental immunity,
immunity based on the eleventh amendment to the Constitution of the United States
or otherwise, from any claim or from the jurisdiction of any court. Each party hereby
consents to the exclusive jurisdiction of such court, waives an objection to venue
and waives any claim that such forum is an inconvenient forum,
6. The Parties shall attempt in good faith to resolve any dispute arising out of this
Agreement. ln addition, the Parties may agree to utilize a jointly selected mediator
or arbitrator (for non-binding arbitration) to resolve the dispute short of litigation.
7.. This Agreement may be executed in several counterparts (facsimile or otheruise) all
of which when taken together shall constitute one agreement binding on all Parties,
notwithstanding that all Parties are not signatories to the same counterpart. Each
copy of this Agreement so executed shall constitute an original. This Agreement
and attached exhibits constitute the entire agreement between the Parties on the
tr
LUBA 2018-140 Record - Page 1075
EXHIBIT 16: ODOT COOPERATIVE IMPROVEMENT AGREEMENT
Central Land and Cattle Company, LLC /ODOT
Agreement No,22397
subject matter hereof. There are no understandings, agreements, or
representations, oral or written, not spebified herein regarding this Agreement. No
waiver, consent, modification or change of terms of this Agreement shall bind either
Party unleiss in writihg and signed by both Parties and all necessary approvals have
been obtained. Such waiver, consent, modification or change, if made, shall be
effective only in the specific instance and for the specific purpose given. The failure
of State to enforce any provision of this Agreement shall not constitute a waiver by
State of that or any other provision.
THE PARTIES, by execution of this Agreemeni, hereby acknowledge that their signing
representatives have read this Agreement, understand it, and agree to be bound by its
terms and condltions.
CentralLand and Company, LLC,STATE OF OREGON, by and through
its Depaftment of TransportationLLC, by and
Ey n
Data By
n4
By
Data
Date
APPROVED AS TO
$UFFICI
d Gompany;
Counsel
ze{ b General
Sata
9entraf Land and Cattle Gompanv,,tLG
Contact:
Kameron DeLashmutt,
2447 NW Canyon, Redmond Oregon,
541-350-8479,
Kam eron@ bendcable.com
State Contact;
Bob Townsend - Area Manager,
63055 N. Hishwav 97.Bend Oreoon 97703.
(541)388-6252
Robert. L,Townsend@odot. state .o r. us
By
{
7
LUBA 2018-140 Record - Page 1076
LEGAL COTINSEL
For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF'COMMISSIONERS
FILE NUMBER: CU-05-20
IIEARING DATE: December 20,2005
APPLICANT:Thornburgh Resort Company, LLC
Kameron Delashrnutt
c/o Schwabe, Williamson & Wyatt, p.C.
354 SW Upper Terrace Dr., Suite 101
Bend, OR97702
(541) 318-e9s0
OWNER'S
REPRESENTATIVE:
Schwabe, Williamson & Wyatt, P.C
Peter Livingston, Attorney atLaw
1211 SW Fifth Ave., Suite 1600
Portland, OP.97204
(s03) 7e6-28e2
I
Myles Conway, Attorney atLaw
354 SW Upper Terrace Dr., Suite 101
Bend, OR97702
(s41) 149-4019
Martha Pagel, Attorney atLaw
1011 Liberty St., SE
Salem, OR 97302
(s03) 7e6-2872
STAFF REVIEWER: Devin Hearing
rRB):
APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code, ZoningOrdinance:
Chapter 18.16. EXCLUSIVE FARM USE __ Tumalo/Redmond/ Bed Subzone (EFU-
Pager ofee-BoccTHoRNBURGHFINDINGSANDDECTSTON-CASENo. cu-0s-20,DcNo.2006-rDc: e 0 06 * I 5 1
3. A description of how the proposed destination resort will satisfy the
standards and criteria of DCC 18.113.060 and 18.113.070;
This discussion is provided in detail below in reference to DCC 1 8. 1 13.060 and
18.1 13.070.
4- Design guidelines and development standards defining visual and
aesthetic parameters for:
Applicant provided draft design guidelines and development standards to define visual
and aesthetic parameters for residential building character, laniscape character, preservation ofexisting topographic features and vegetation, siting of buildings and proposed standards for
minimum lot area, width, frontage, lot coverage, setbacks and building heights. An architectural
review committee will be charged with applying the standards to individual b,rilding
applications. See Architecfural and Landscape Design Guidelines, Bop, Ex, g, B-24.
a. Building characterl
Applicant asserts that buildings will be designed to blencl into the natural features of theproperly. New construction will be reviewed by the Deschutes County Builcling and SafetyDivision.
The Architectural and Landscape Design Guidelines, BOP, Ex. 8, B-2, set forth the
elements of design for residential buildings, addressing building style, building scale and
massing, building size and height, roofs, windows and doors, trim and detailing and porches,
decks and courtyards, garages and other ancillary structures. The guidelines
"n"nutug. the use
of natural materials frorn the high desert area (e.g., stone, wood, tile and slate), incluJing
specifications relevant to exterior walls, roofing materials, windows and doors, exterior lighting
and landscape material. They also encourage the use of warm muted colors, natural colors and
neutral tones.
b. Landscape character;
The development's architecfural review committee will also review proposed residential
landscaping. The Architectural and Landscape Design Guidelines encourage natural "High
Desett" type landscaping, which includes planting indigenous species detaiied in a plant iist(BOP, Ex' 8, B-2, Appendix A). To conserve water, large lawni will be discouraged onindividual residential lots. The architectural review committee design standards are intended to
cncourage owners to use zonal planting techniques to create a natural transition from the formal
landscaping surrounding buildings to the natural, .,wild', areas.
c. Preservation of existing topography and vegetationl
Applicant anticipates that approximately 184 acres of the residential areas will retain
native vegetation. On the golf course area, comprised of approximately 67 acres of lakes and
589 acres of land, approximately 153 acres will retain natural vegetation, with part of that likely
to be irrigated. Consequently, a little more than half of the proposed project area will consist of
PAgC I8 Of 99 - BOCC THORNBURCH FINDINGS AND DECISION - CASE NO. CU-05.20, DC NO. 2006-15I
natural vegetation that is mostly, but not entirely, non-irrigated. See Tetra Tech Wildlife Report,
BOP, Ex.6, B-20.
Applicant anticipates that significant rock outcroppings and trees shall be considered for
protection in the platting process as well as the architectural review process. ln addition,
Applicant suggests, and the Board agrees, that in order to ensure the restoration of native
vegetation in areas disturbed by construction, a condition of approval be imposed to require such
restoration.
d. Siting of buildings;
The Architectural and Landscape Design Guidelines, BOP, Ex. 8, B-2, Article 2, provide
that each building will be sited to maintain views and preserve harmony with existing natural
features and the environment.
Proposed standards for minimum lot area, width, frontage,lot
coverage, setbacks and building heights.
The Residential Lot Standards, BOP, Ex. 8, B-24a, include minimurn lot area, proposed
lot coverage, width, fi'ontage, setbacks and building heights.
Opponents contend that the proposed design guidelines and development standards are
"too qualified to be meaningful." The Board disagrees. The site development and landscaping
guidelines in the Architectural Design Guidelines, BOP, Ex. 8, B-24, emphasize blending irito
and enhancing the surrounding environment and contain specific objectives to consider when
evaluating site development. The approach taken is consistent with the language of this
criterion, which does not require strict rules.
This cdterion is met.
5. An open space management plan which includes:
^,An explanation of how the open space management plan meets
the minimum standards of DCC 18.113 for each phase of the
development;
DCC 1 8. 1 1 3 .060 D. requires that a minimum of 50 percent of the total acreage of the
development be devoted to permanent open space. "Open space" does not include yards, streets,
parking areas, and required landscaping provided under DCC 1 8.124.070 for deveioped
recreational facilities, visitor-oriented accommodations or multi-family or commercial uses.
Open space does include natural cornmon areas, golf courses, lakes, parks and picnic areas, trail
networks, and buffer setbacks (exterior perimeter setbacks).
Applicant submitted an Open Space Management Plan, BOP, Ex. 9, B-3, which discusses
a strategy to protect and presele open space and open space values. The Open Space Map
(Revised), RM, Ex. 9, B-1,04, and the Open Space Phasing Plan (Revised), RM, Ex. 9, B-1.09,
included in Applicant's rebuttal materials, depict the phase-by-phase protection and development
of open space areas, including natural cornmon areas, trails and golf courses. Applicant explains
e
Page 19 of 99- BOCC TFIORNBURGH FINDINGS AND DECISION - CASE NO. CU-05-20, DC NO.2006-lsl
22' If the proposed destination resort is in a SMIA combining zoneo DCC
18.56 shall be addressed;
The resort property is not in a Surface Mining Impact Area (SMIA) combiningzone.
This standard does not apply.
)7 If the proposed destination resort is in an LM combining zone, DCC
18.84 shall be addressed;
The resort property is not in a Landscape Management (LM) combining zone. This
standard does not apply.
24. A survey of historic and cultural resources inventoried on an
acknowledged Goal 5 inventoryl
The County's acknowledged Goal 5 inventory does not include any historic or cultural
resources located on the resort property; therefore, the Board fincls a survey is not required.
Further, even if there are significant resources on the site that are pot inclucled on the inventory,
they cannot be treated as added for purposes of this application , Urquhart v. Lane Council of
Governmenls, 80 Or App 116,721 P.2d 87A (1986).
Applicant submitted a "Historic and Cultural Resources Survey," BOP, Ex. 22,B-1.27, inwhich Tetra Tech discusses its review of cultural resources literature and applicable recor4s
pertinent to historic and cultural resources on the site. Applicant then askecl-Tetra Tech to do an"Archaeological Survey and Evaluation" of those parts of the resoft that the survey suggestedmight locate significant cultural I'esources. RM, Ex. 22, B-1.27 . Applicant's submission of these
studies goes beyond what is required by this criterion.
Opponent Gould argues that DCC i8.113.050 B.1 requires consideration of impacts of
proposed development on archaeological resources. The Board disagrees and interprets DCC
18.1 l3 '050 B' I to address only impacts on nafural resources, a Category that does not include
archaeological resources. DCC 18.128.015, also mentioned by Gou1d, does not apply to this
application.
This criterion is met.
STANDARDS F'OR DESTINATION RESORTS (DCC 13.113.060)
The following standards shall govern consideration of destination resorts:
A. The destination resort shall, in the first phase, provide for and inclucle aspart of the CMP the following minimum requirements:
1. At least 150 separate rentable units for visitor-oriented lodging.
2. Visitor-oriented eating establishments for at least 100 persons and
meeting rooms which provide eating fo. at least 100 persons.
PAgE42 Of 99- BOCC THORNBURGH FINDINGS AND DECISION- CASE NO, CU-05-20, DC NO, 2006.15I
The aggregate cost of developing the overnight lodging facilities and
the eating establishments and meeting rooms required in DCC
18.113.060(AXl) and (2) shall be at least $2,000,000 (in 1984 dollars).
At least $2,000,000 (in 1984 dollars) shall be spent on developed
recreational facilities.
The facilities and accommodations required by DCC 18.113.060 must
be physically provided or financially assured pursuant to DCC
18.f13.110 prior to closure of sales, rental or lease of any residential
dwellings or lots.
As noted above, Applicant proposes to develop the resort in seven phases. Applicant
states it will comply with the above requirements for the first phase of development, including
construction of 50 golf cottages with lockout facilities to ensure 150 separate rentable units are
available within the first phase. Applicant also will develop (or bond) a restaurant with seating
for at least 100 persons in the first phase. The Board finds that Applicant must provide the
meeting and eating areas in the first phase, Although Applicant must show the location of the
meeting and eating areas in Phase A, DCC 18.113.110(B) allows Applicant to provide financial
assurances satisfactory to the County for those improvements rather than actually constructing
thern prior to recordiug the final plat. Condition of Approval #33 outlines this requirement.
This criterion is met,
All destination resorts shall have a minimum of 160 contiguous acres of land.
Acreage split by publie roads or rivers or streams shall count toward the
acreage limit, provided that the CMP demonstrates that the isolated acreage
will be operated or mflnaged in a manner that wiII be integral to the
remainder of the resort.
The site comprises 1,970 acres, exceeding the 160-acre minimum.
This criterion is met
All destination resorts shall have direct access onto a state or County arterial
or collector roadway, as designated by the Comprehensive Plan.
The resort has direct access to the Cline Falls Highway, which is designated as an arlerial
roadway in the Deschutes County Comprehensive Plan and which will be utilized as a main
entrance point for the resort development. The Cline Falls Highway bisects the southeast comer
of the resort property in Section 28 and provides a direct connection to the county road system.
This access alone is sufficient to satisfy the criterion.
The Board also finds tliat Applicant will be able to obtain a second direct access to a state
or County arterial or collector roadway designated by the Comprehensive Plan, Oregon State
Highway 126,if Applicant's pending right-of-way application with the U,S. Bureau of Land
Management is approved. Applicant prepared an "Application for Transporlation and Utility
Systems and Facilities of Federal Lands" (hereafter the "BLM Right-of-way Application") that is
J
4
5
B
C
Page 43 of 99 - BOCC THORNBURGH FINDINGS AND DECISION - CASE NO. CU-0s-20, DC NO. 2006-lsl
2.a
any deficit in OLUs in the existing Resort. lf, on the other hand, the existing Resort
only includes 45 "separate rentable units for overnight lodging," then the Applicant
will be required to increase the number of proposed OLUs in the Annexation Area
such that the existing Resort and the Annexation Area, together meet the
minimum requirement of ORS 197.445(4) and DCC 18.1 13.060(AX1).
The BoCC's analysis begins with the test set forth by the Court of Appeals in Central
aregon Landwatch v. Deschutes County, 285 Or App 267 (2017) ("Caldero ll"). ln
Cslderq //, the Court concluded that individually owned units "to qualify as
'overnight lodgings,'must be, as a factual matter, an accommodation that is both
its own 'separate' unit that is rentable separately from other units." Caldera ll at
294.The Court went on to say that there must be evidence in the record that the
"unit is in fact separate and rentable separately from other units[.]"
Based on the evidence and testimony in the record, the BoCC finds that the 45
overnight lodging structures include at least 150 units that are separate, individual,
autonomous and independent units. Moreover, based on the evidence in the
record, the BoCC finds that the units are "rentable separately from other units." /d.
Are the Units "Separate"?
First, each OLU has a separate outside entrance so that an individual guest may
enter the unit "separate" from the remainder of the house. Each unit has a
separate key, unique to the unit so that only the registered guest may open a
locked door. Thus, even if the remainder of the cabin was rented by one or more
unrelated guests, a guest renting an individual unit could enter and exit a unit
without any contact with any other guests. Similarly, because each unit is
separately keyed like a hotel or motel room, no other guest staying in the structure
may enter into another guest's quarters either through the outside entrance or the
interior connecting door. The separate entrance for each unit has its own
individual unit number (e.g., 24-C), clearly identifying the unit as separate from
other attached units. Parking spaces for each OLU are provided and used in
common with other guests adjacent to each structure. Each unit has a separate,
private bathroom, identical to a hotel or motel room. Each unit has a separate,
individual sleeping area, with a variety of sleeping options. Each unit has a
television allowing guests to relax in their unit separate from other guests. Each
unit, therefore, is "not shared with another" and "exists by itself" independent from
other units in the same structure.
There is no functional or practical difference between two adjoining OLUs and two
adjoining hotel rooms. Both units are separate from adjoining units in the sense
that they are independent and include all of the required elements of a transient
accommodation or a "sleeping unit" as defined by the Oregon Structural Specialty
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Code:'A room or space in which people sleep, which can also include permanent
provisions for living, eating, and either sanitation or kitchen facilities, but not both."
Clearly, if a hotel room qualifies under ORS 197.445(4)(b) as a "separate rentable
unit" then so too do the existing Caldera Springs OLU's which share the exact same
features as a hotel or motel room. ln any instance where a structure is occupied
by separate guests, similar to an adjoining hotel room, there are interior doors
which effectively separate the various OLUs to permit guests to maintain their
privacy in their own OLU. ln such instances there are no physical connections
between the units or other interaction between guests while they are in their own
unit. Each OLU operates independent of the other units in a manner exactly the
same as adjoining hotel rooms. Under the "separate" test, if two adjoining hotel
rooms can qualify as two "separate rentable units for overnight lodging" under
ORS 197.445{4), then there is no basis under Cslders // to conclude that two
adjoining lock-off rooms do not similarly qualify as "separate."
ln Cqldera /1, the Court concluded that,
the lock-off rooms are not part of an establishment that provides services
or hospitality associated with hotels or motels. That is, a'hotel'is a'building
of many rooms chiefly for overnight accommodation of transients and
several floors served by elevators'that includes features such as a lobby,
meeting rooms, restaurants, and personal services. A 'motel' is an
'establishment which provides lodging and parking and in which the rooms
are usually accessible from an outdoor parking area.'The Caldera Cabins,
which are single-family residences, do not offer the amenities or services of
a commercial, overnight-lodging establishment. Caldera ll at290.
The record before the BoCC includes more information than was apparently
before the Court. The existing OLUs are located centrally in the Caldera Springs
resort core, situated around a series of recreational lakes, adjacent to tennis
courts, golf links, a pool, restaurant, meeting rooms and fitness center-all typical
and required features for a destination resort. These features are adjacent to and
within a short walking distance from the OLUs. Resort amenities available to
Caldera Springs registered guests, include complimentary access to (1)the Quarry
Pool, (2) tennis and pickle ball, (3) cruiser bikes and watercraft, (4) Caldera Links,
(5) Sage Springs Spa and many other features. Guests also have 24/7 resort
concierge services, complimentary shuttle services and housecleaning services.
While the cabins are not located in a multi-floor building served by elevators, the
resort amenities available to Caldera Springs guests exceed those typically found
in a hotel. Resort amenities include the Lakehouse (lobby & meeting rooms), Zeppa
Bistro irestaurant), Quarry Pool (recreation facility), Quarry Fitness Center
(personal services). ln comparison to a "motel" the Caldera Springs OLU's qualify
as an "establishment which provides lodging and parking and in which the rooms
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are usually accessible from an outdoor parking area." As described in detail above
and in the attached exhibits, each OLU structure includes an outdoor parking area
with direct outdoor, private access to each OLU. While the BoCC acknowledges that
hotels and motels qualify as "overnight lodgings" under the first sentence of
ORS 197.435(5Xb) and "individually owned units" are described in the second
sentence of ORS 197.435(5)(b), the BoCC finds that there is no practical difference
between hotel and motel rooms and the services offered at such facilities and the
existing Resort OLUs. Again, if the test under Colderq ll is a factual determination
of whether a unit is separate from another unit, the comparison between a hotel
or motel room and a lock-off unit is appropriate.
As a practical matter, had the Resort elected to construct individual structures,
each of which was the exact same size with the same layout as the existing OLUs,
but instead of having internal connections were connected through an outdoor
breezeway, there could be no argument that such units are not "separate." The
BoCC finds the distinction between an outdoor connection and an interior
connection is a distinction without a practical difference. Both units would serve
the same identical function and would serve the same number of overnight guests.
Both LUBA and the Court appeared to believe that the provision of lock-off units
somehow reduced the number of actual overnight lodging units available to the
public. A hotel or motel that provides 196 "sleeping areas" as defined by the
building code provides the exact same number of "sleeping areas" as are provided
in the 45 Caldera Cabins. Similar in every respect to a hotel or motel room which
provide a variety of sleeping arrangements (e.g., king bed, queens, sleeper sofas),
the existing OLUs include a variety of sleeping options designed to serve the needs
of a particular guest. Consequently, a 196-room motel would serve the exact same
number of guests as do the 45 cabins with 196 separate OLUs. The BoCC finds that
there is no basis to conclude that somehow the 196 OLUs at the resort would
attract fewer guests than would a 196-room motel. ln fact, the record
demonstrates that the opposite is true. The record includes testimony from the
Managing Director of Sunriver Resort which concludes that the target guest for
Caldera Springs is a family, an extended family or a group of friends. Given the
choice between renting five motel rooms with no ability to interact with their family
members or renting five OLUs with the ability to connect with their family
members or friends, the target guest at the Resort will choose the latter. There is
no evidentiary support to conclude that a 195-room motel would further the
legislative policy of attracting visitors more than do the existing OLUs.
Are the Units "Separately Rentable"?
Both LUBA and the Court also expressed concerns that the prior record did not
include evidence that the OLUs were capable of being "rentable separately from
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other units." Caldera ll at 294. The record includes a spreadsheet identifying
instances where the individual OLUs have been rented separately from each other.
"Master Reservations" are instances where the entire Caldera cabin is rented
through a corporate, golf package, reunion or other group. The record
demonstrates that each guest in a separate OLU, has their own unique reservation
number or "guest folio" and charging privileges. For example, if a large corporate
group were to rent all 45 cabins as part of a group retreat for 196 of its employees,
the company would hold the master reservation, but each employee would have
their own unique reservation number, OLU, and charging privileges associated
with their unique suite. Similarly, in a family reunion setting, one family member
may reserve several cabins, but each family member would have their own unique
reservation number, their OLU accommodation and charging privileges. According
to the Applicant, over the past 7 years, shared reservations accounted for an
average of 150/o of all stays, with a range of 40/o to 3070 depending on the year.
Whether a single guest reserves all 1 96 OLUs or whether 196 separate guests book
the OLUs, the same number of guests can be accommodated in the existing
overnight units.
ln addition to this historic evidence, the record includes a printout from the
Caldera Springs website which demonstrates that the individual OLUs may be
rented in any combination desired by a guest. lf a guest needs one OLU, they can
rent one OLU. lf they would like two OLUs or the entire suite of OLUs in a cabin,
they are free to rent accordingly. ln addition, the record includes an affidavit from
Sunriver Resort which demonstrates that the 156 OLUs managed by the Sunriver
Resort are individually rentable through the central reservation service established
by Sunriver Resort for Caldera Springs.
The BoCC again acknowledges that there is a difference under the statute between
hotel rooms and individually owned units. That said, the BoCC finds no practical
difference between a family member reserving four adjoining hotel rooms and the
same family member reserving an entire structure that includes four separate
units. ln both instances, the four units qualifu as "separate rentable units" under
oRS 197,445(4\.
To the extent that the Board's decision is appealed and an appellate body
determines that, as a factual matter, the existing OLUs do not qualify as "separate
rentable units" under ORS 197.445(4j, then the majority of the Board, on a 2-1 vote,
believes that the condition of approval detailed below is appropriate and ensures
that the overall Resort will meet the initial minimum 150 OLU requirement. After
the Applicant provides additional OLUs to "make up" for any deficit, the Applicant
willthen be required to maintain the appropriate ratio between overnight lodging
units and single-family units.
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CLEMOW TRIP DEBIT LETTER
C emow
ass.;cicles liC
May 2t,2O2L
Central Land and Cattle Company, LLC
Attention: Kameron DeLashmutt
2447 NW Canyon Drive
Redmond, Oregon 97756
Re: Thornburgh Destination Resort - Deschutes County, Oregon
Trip Debit Letter #3 - Tribute Phose A - Cottages
C&A Project Number 201.80303.01
Dear Mr. DeLashmutt,
This letter presents an accounting of trips considering the currently proposed ownership cottages at the
Thornburgh Destination Resort. This letter specifically presents:
1. Background2. Vested Trips
3. Previously Approved Development Trips4. Proposed Development Trips
5. Trip Accounting
6. Summary
1. BACKGROUND
The Thornburgh Destination Resort has received Conceptual Master Plan (CMP) and Final Master plan
(FMP) approvals authorizing full destination resort development. During the CMp review process, the
September 28, 2005 Transportation lmpact Analysis prepared by Group Mackenzie (2005 TIA) was
prepared and included a comprehensive analysis of destination resort transportation system impacts.
Resulting CMP and FMP approvals required the Applicant to mitigate all transportation impacts of the
entire destination resort by complying with an impact mitigation agreement with the Oregon Department
of Transportation (ODOT) funding intersection improvements.
The Applicant has also previously received land use approvals for L92 single-family recreation use
dwellings and an 18-hole golf course. These development impacts were contemplated in the August L1.,
2018 Trip Debit Letter and the September 25, 2018 Post-Hearing Response (for the residential dwellings),
and in the June 28, 2019 Trip Debit Letter {for the golf course) prepared by Clemow & Associates and it
was found the development did not generate, as a matter of right, transportation impacts exceeding those
contemplated in the 2005 TlA.
l5B2 Felters Loop, Eugene. Oregon 974A21541-529-83l5f cclemow@elemow-ossociotes.com
EX. 19: CLEMOW TRIP DEBIT LETTER
Thornburgh Destination Resort - Deschutes County, Oregon
C&A Project Number 20180303.01
May 2l,2O2L
Page 2
2. VESTED TRIPS
The 2005 TIA identified total external development trip generation for two different resort areas, Tribute
and Pinnacle, which is summarized in the following table.
As identified in the previous table, the total external development trip generation is 517 PM peak hour
trips. These ffips are vested for use by the entire Thornburgh Destination Resort.
3. PREVIOUSLY APPROVED DEVELOPMENTTRIPS
The Applicant previously received land use approvals lor L92 single-family recreation use dwellings and
an 18-hole golf course. These developments generate 63 PM peak hour trips which is more specifically
detailed in the 2018 Trip Debit Letter, the 2018 Post-Hearing Response, and the 2019 Trip Deblt Letter.
The following table summarizes the existing trip accounting.
Following previous approval of the single-family recreation use dwellings and golf course, 454 pM peak
hour vested trips remain for use by the entlre Thornburgh Destination Resort.
Tribute ExternalTrips
Pinnado External Tdps
TotalVested Extemal
106
,t38
2M
124
149
273
xa
287
517
Established Vested Trips by the CMP/FMP 244 273 517
Previously Approved frip Debits
192 Single.Family Recreation llse Dwetlings @
(2)
w
220
w
rt)
(a9.t
234
(54)
{e)w
4il
l4-Hole Golf Course
TotalApprwd Dcbils
Remaining Vested Trips
Itr cmc Thornburg Trip Debit Letter 3 Phase A Cottages - finaldoor
EX. 19: CLEMOW TRIP DEBIT LETTER
Thornburgh Destination Resort - Deschutes County, Oregon
C&A Project Number 20180303.01
May 2L,2O2L
Page 3
4. PROPOSED DEVELOPMENT TRIPS
CMP and FMP conditions of approval include, in part, that the first development phase provides at least
L50 separate rentable units for visitor-oriented lodging. lt is further noted the 2005 TIA assumed these
units would be provided in 50 ownership cottages.
The Tribute Phase A development proposal includes 24 ownership cottages having a total of 80 overnight
lodging units. As such, the proposed development represents 53% (8Oh5O) of the total approved
overnight lodging units.
Tribute Phase A trip generation for the ownership cottages is estimated using data from the 2005 TlA,
further considering the number of lodging units, and is presented in the following table.
t ThepoposeddevelopnnntrepresentsS3%(80/150)ofhetotal approvedovemightlodgingunitsandiripgenenaflon.
The total proposed Tribute Phase A development trip generation is 7 PM peak hour trips.
5. TRIP ACCOUNTING
The following table presents an accounting of the vested trips, previously approved trip debits, and the
currently proposed development trip debit.
Following approval of the 24 cottages wlth 80 overnight lodging units in Thornburgh Phase Au 447 PM
peak hour vested trips will remain for future use by the entire Thornburgh Destination Resort.
2005 TIA-Assumed Ownership Coftages
&rnently Proposed &vnershlp Cof'rrages
50
24
150
801
5
3
I
4
13
71
Established Vested Trips Anticipated by the CMP/FMP
P reviou sly Ap p rotad Debffs
Currently Proposed Debit-Thomhurgh Phase A
Total Dehl9 - Approwd, a nd P rc pwed
244
{24}
(s)
(27)
217
517
w
tt)
(r0l
4{t
273
(3e)
(4)
(1s)
230Vested
Itr cmc Thornburg Trip Debft Letter 3 Phase A Cottages - flnal.door
EX. 19: CLEMOW TRIP DEBIT LETTER
Thornburgh Destination Resort - Deschutes County, Oregon
C&A Project Number 20L80303.01
May 2L,202I
Page 4
6. SUMMARY
The following conclusions and recommendations are made based on materials contained in this letter
L. The September 28, 2005 Transportation lmpact Analysis prepared by Group Mackenzie identified
total external development trip generation as 517 PM peak hour trips. These trips are vested for use
by the entire Thornburgh Destination Resort.
2. Previously approved development trip debits total 63 PM peak hour trips. As such, 454 PM peak hour
vested trips remain for use by the entire Thornburgh Destination Resort before additional mitigation
might be warranted.
3. The currently proposed Thornburgh Phase A - Cottages development trip debit is 7 PM peak hour
trips.
4. Following approval of the 24 cottages with 80 overnight lodging units in Thornburgh Phase A, 447 PM
peak hour vested trips will remain for future use by the entire Thornburgh Destination Resort.
5. No additional transportation analysis is necessary to support the proposed development.
Sincerely,fu-Ta*-
Christopher M. Clemow, PE, PTOE
Transportation Engineer
Attachments; Thornburgh Phase A Site Plan
leloo FE
kaevts 3tvcza^
Itr cmc Thornburg Trip Debit Letter 3 Phase A Cottages - finaldoo<
EX 1S CLEMOWMF DEBtr 6ERc2.0@----|9jg,odg$lEsqdo@s.L-----let!,@lru180110{i'}Ei,-ElBi+;agiJI!l,lJFoz5(LulFo=to(-)LOT 2G5CIl+FFCABIN SITE PLANU6uUoNfr E FdqANLOTS STNE DMSIS OE OFryPICAL PARKING ROAD / LOT SECTION,a^'""Y--ru
: CLEMOW SITE DISTANCE ANALYSIS
C emo\A/
cssr,-cicles Lii,_-
May 2L,2O2t
Central Land and Cattle Company, LLC
Attention: Kameron DeLashmutt
2447 NW Canyon Drive
Redmond, Oregon 97756
Re: Thornburgh Destination Resort- Deschutes County, Oregon
Technical Letter #7 - Tribute phase A - cabins - Sight Distance Analysis
C&A Project Number 20180303.01
Dear Mr. DeLashmutt,
This letter presents a sight distance analysis for the currently proposed cabins at the ThornburghDestination Resort. The analysis specifically addresses Deschutes County Code (DCC) driveway andintersection sight distance requirements as they relate to the Tribute Phase A cabins illustrated in theattached site plan.
The following items are specifically addressed in this analysis:
L. Sight Distance Analysis Requirements2. Sight Distance Analysis
3. Summary
1, SIGHT DISTANCE REQUIREMENTS
The relevant portions of Deschutes county code section 1g.116.310 state:
"H. Operation and Sofety Stondards
3. The minimum sight distance for driveways and intersecfions is defined in AASHT7,s
"GEOMETRIC DES/GIV OF HTGHWAYS AND STREETS" and the AASHTO "Design Guidelines forVery-Low Volume Local Roads (< 400 ADT),."
The 20L9 AASHTO Guidelines for Geometric Design of Low-Volume Roads presents geometric designguidelines for low-volume roads which are intended for use on low-volume local and minor collector roadsin lieu of the applicable policies presented in the AASHTO publication, A policy on Geometric Design of
Highways ond Streets, commonly known as the Green Book. A low-volume road isfunctionally classified
as a local or minor collector road and has a design average daily traffic volume of 2,000 vehicles per day
or less. The private roads in the Thornburgh Destination Resort are all low-volume roads.
l5B2 Fetters Loop, Eugene. Oregon ?74A21 541-5/?-8315 | cclemow@clemow-cssocictes.conr
EX. 20: CLEMOW S|TE DTSTANCE ANALYS|SThornburgh Destination Resort _ Deschutes County, OregonC&A Project Number 20190303.0j.
May 21.,2A2I
Page 2
Relevant materials in the 2019 AASHTO Guidelines for Geometric Design of Low-volume Roadsfurther
"The design guidelines presented in this document are opplicable to local and minor collector roadswith design volumes of 2,O0A vehicles per day or less...
For purposes of the design guidelines, low-volume roods are fufther subdivided into six functionalsubclasses for rurar facirities as foilows fthe rerevant subcrass is presented]:
2,3.2 Rural Minor Access Roads
Rural minor access roods serve almost exclusively to provide occess to adjacent propefty. Many ofthese roads are cul'de-sacs or loop roads with no through ,orriruiry. The length of minor accessroads is typically short. Because their sole function ir*to proiiJ" access, such roads are usedpredomi na ntly by fa m ili a r d rivers.
Minor access roads generally serve residentiot or other non-commercial land uses. speeds aregenerolly low for the locol environmenl given the purpose of the road and short trip rengths. Asnoted above' many minor access roads end in cut-de-sacs or dead ends, thus timiiing theopportunity for high travel speeds. Minor occess roads are frequ"nli ,*ro*, o,ii ir"ro^u ,urotoreas may function as one-lane roads' Minor dccess roads can be either poved or unpaved. Trofficis largely composed of passenger vehicles or oth.er smaller vehicle types. However, such roads needto be accessible to scho.o! buses, fire trucks, other emerg"rry ,"iii"r, and maintenance vehicressuch as snowplows and garbage truck. Access roads sirvtig comtmerclol or lndusffial tdnd usesare described below in a separote functionat subcloss.
4.6.2 Clear Sight Triangles
specific areas along intersection approoch tegs ond across their included corners should he clearof obstructions thot might btock a drivels vtew of ootentnai ciiiicting vehtctes. These spectficareas are known as clear sigft trtdngles. Two typs of cteii iUnt tiangles considered inintersection design, appro.ach sight trid;gles and departure sight tliongles, ore explained below.The dimensions of the ct_ear sight trb;gles dylna on the-isig:n speeds of the intercectingroadways and the type of traffic control ised at the interseaiii.-iiese dimensions ore bosed onfield studies in NCHRP Repoft 383 (g] that hove obserued driver behavior ond hove documentedthe space-time profites and speed chorces of drivers on trt"lriiii'ipprooches.
4.6.2.7 Approach Sight Triangtes
Eoch quadront of an uncontrolled or yleld-controtled intersecuon should contain a ctear slghttriangle free of obstructions thot mlght btocl on opprooiiii Trwers view of poten ailyconflicting vehicles on .the ktersectlng approoches. The arca cteir of sight obstructions shouldinclude sufficient lenothl o! both inter*iing roodways, as weil as their included corner, sa thotthe drivers without the right-of-way ton rrriry potentially conflicfing vehicle in suffictent time toslow or stop before reaching the inte1e(tlon. Hgurc 4-3A in"ii'iititclear stghttrionglestotheleft and to the rightfor a vehicle approachlng on tntersectton.
Itr cmc TL1 Thornburgh supprementar sight Distance Anarysis - finar,door
EX. 20: CLEMOW SITE DISTANCE ANALYSIS
Thornburgh Destination Resort - Deschutes County, Oregon
C&A Project Number 20180303.01
May 2t,2O2t
Page 3
The vertex of the sight triangle on the uncontrolled or yield-controlled approach represents o
decision point for the approaching driver. This decision point is the location at which the driver
should begin to brake to d stop if another vehicle is present on an intersecting approach, The
distance from the decision point to the center of the major-road lane into which a driver will turn
is shown in Figure 4-3A as distance a. The length of the leg of the clear sight triongle along the
major road is shown in Figure 4-3A as distance b.
The geometry of a clear sight triangle is such thdt when the driver of o vehicle without the right-
of-way sees a potentially conflicting vehicle on on intersecting approach that has the right-of-way,
then the driver of that potentiolly conflicting vehicle can olso see the first vehicle. Thus, the
provision of a clear sight triangle for vehicles without the right-of-way also permits the drivers of
vehicles with the right-of-way to be prepared to slow, stop, or avoid other vehicles, should it
become necessc,ry.
Approach sight triangles like those shown in Figure 4-3A are not needed for intersection
approaches controlled by stop signs because all approaching vehicles are required to stop dt the
intersection, regardless of the presence or absence of vehicles on the intersecting approaches,
Figure 4-3. Cleer 5ight Triangfes for lntersection Approaches
A-Approach Sight Triangles
b-t
Major Road Ma,;or
str
g
E
Road
Edog
o
€
Decision Point
Clear Sight Triangle for Viewing
Traffic Approaching from the Left
Clear Sight Triangle
Decision Point
Clear Sight Triangle for Viewing
Traffic Approaching from the Right
,/
Clear Sigltt Triangle
a
i I
Itr cmc TL1 Thornburgh supplemental sight Distance Analysis - final,doot
EX. 20: CLEMOW SITE DISTANCE ANALYSIS
Thornburgh Destination Resort- Deschutes County, Oregon
C&A Project Number 20180303.01
May21,2O2L
Page 4
4.6.i.1 lntersedions with No Control(Case A)
For intersections not controlled by yield signs, stop signs, or trd{fic signals, the driver of a vehicle
approaching the intersection should be able to see potentially conflicting vehicles on intersecting
approaches in sufficient time for the approaching driver to stop before reaching the intersection.
The location of the vertex of the sight triangles on each approach is determined from a modelthat
is anologous to the stopping sight distance model, with slightly different assumptions. Drivers of
approaching vehicles may need up to 2.5 s[econds] to perceive vehicles on intersecting approaches
and to initiote braking.
While some perceptuol tasks at intersections moy need substantialty less time, the detection and
recognition of a vehicle that is a substantial distance away on an intersecting approach, and is
nearthe limits of the driver's peripheralvision, may need up to 2.5 s[econds]. The distance to brake
to a stop can be determined from the some braking coefficient used for stopping sight distdnce
design.
Field observations in NCHRP Report 383 (9) indicate that vehicles opproaching uncontrolled inter-
sections typically slow down from their running speed between intersections to approximatety S0
per- cent of their running speed. This occurs even when no potentially confticting vehicles are
present. This initial slowing typically occurs at deceleration rdtes ap to 5 ft/s2 [1.5 m/s2],
deceleration atthis gradual rate has been observed to begin even before o potentially confticting
vehicle comes into view. Braking at greater deceleration rates, which can approach those assumed
in stopping sight distance, begins up to 2.5 s[econds] after a vehicle on the intersecting approach
comes into view. Thus, opproaching vehicles moy be trovellng ot less than their runntng speed
upstream of the intersection during oll or part of the perception-rcoction tlme and coq therefore,
where necessary, brake to o stop from o speed less thdn the running speed upstream of the
intersection.
Toble 4-10 shows the distonce traveled by an opprooching vehicle during percepuon-readlon and
braking time as a function of the design speed of the roadway on whtch the intercection approach
is located. These distances should be used as the legs of the sight triongles shown ln Figure 4-3 A.
Referring to Figure 4-3A, roadway Awith o 50 mph [80 km/h] deslgn speed and roadwoy B with a
30 mph [50 km/h] design speed need a deor sight triangle with legs sfiending at leost 225 ft [ffi
ml and DAft [4A m] along roadwaysAond 4 respectlvely.
This clear sighttriangle will permitthevehlcles an either roadto stop, if necessary, before reoching
the intersection. lf the design speed of ony approoch ls not known, it con be estimated by using
the 85th percentile of the running speeds upstredm of the intersection on thot intersection leg.
The distances shown in Table 4-70 are generally less than the conespondlng values of stopping
sight distance for the same design speed. Were o cleor sight triangle whose legs conespond to
the stopping sight distances of their respectlve opproaches can be provided, this witt tikely reduce
crash frequency and severity even further. However, since field obseruations show thot motorists
slow down to some extent on approoches to uncontrolled lntersections, the provision af a clear
sight triangle with legs equal to the full stopping sight distdnce ls not essential."
Itr cmc TL1 lhornburgh Supplemental Sight Distance Analysis - flnal.doc
EX.20: CLEMOW SITE DISTANCE ANALYSIS
Thornburgh Destination Resort * Deschutes County, Oregon
C&A Project Number 20180303.01
May21,2O2L
Page 5
Teblc 4-10. Rccommcndcd Siglt Distance Guidclincs for New Consruction of Intcrscc-
tions widr No Traffic Control (Cesc A)l(5,h71
Itde: Fd+D#t gr.dsgGdF0u3F6{ nrdiftdtc !4{rl.tdE sfE!totc ffi.i* aalutttt rf
As identified above, for low-volume road intersections with no traffic control, such as the subject
residential accesses, for a 25 MPH Thornburgh Destination Resort speed limit on roadways serving the
cabins, the recommended intersection sight distance is 95 feet.
For informational purposes only, 2019 AASHTO Guidelines for Geometric Design of Low'Volume Roads,
Table 4-7 - Design Stopping Sight Distonce Guidelines for New Construdion of Low-Volume Roads with
Design Volumes of 2,000 Vehicles per Day or Less indicates that for a 25 MPH speed, the stopping sight
distance for a roadway with 251-400 vehicles per day is 115 feet'
2. SIGHT DISTANCE ANALYSIS
Per AASHTO design guidelines, intersection sight distance was measured from a driver's eye height of 3.5
feet and 1.4.5 feet from the edge of the nearest travel lane on the roadway to an object height of 3.5 feet
above the roadway surface.
There is no vertical curvature on the roadway limiting sight distance in either direction; however, there is
horizontal curvature and potential parked vehicles on adjacent properties that restrict sight distance. Sight
distance measurements are illustrated in the attached Figures TL1-1 and TL1-2 (for the residential lots
most affected by horizontal roadway curvature) and summarized in the following table.
Sigl{Distare(n}Oesign $pe€d (kmlh!$ight Oistancc {i}D?3ier SG€d {mph)
m
6
30
40
50
65
H)
95
tm
120
r4{t
im
aa
256
3S
350
60
80
N
g)
40
50
60
70
80
90
100
t5
20
Intersection Srghf Disfance - Left and RlghtTurn wlth No lratric Cantol
SB Lot201 to Roadway
NB Lot 207 to Roadway
NB Lot 208 to Roadway
To the East
To the West
To he East
To the West
To the East
To the West
To he East
To theWest
95
95
95
95
95
95
95
95
250+
250+
250+
230
250+
250+
245
250+
Y
Y
Y
Y
Y
Y
YLot 209 to Roadway
Itr cmc TLl Thornburgh Supplemental Sight Distance Analysis - final'doo<
EX. 20: CLEMOW SITE DISTANCE ANALYSIS
Thornburgh Destination Resort - Deschutes County, Oregon
C&A Project Number 20180303'01
MayZL,2O2L
Page 6
As illustrated in Figures TL1-1 and TL1-2 and identified in the table above, intersection sight distance and
clear sight triangle (for intersections without traffic control) requirements are met for all residential
driveway turning movements entering the roadway with a 25 MPH speed limit.
3. SUMMARY
The following conclusions and recommendations are made based on materials contained in this analysis.
1. Deschutes County Code Section 18.116.310.H.3 requires driveway and intersection sight distances, as
defined by AASHTO, be met to provide for safe and efficient transportation system operations.
2. The 2019 MSHTO Guidetines for Geometric Design of Low-Volume Roads presents geometric design
guidelines for low-volume roads which are intended for use on low-volume local and minor collector
roads in lieu of the applicable policies presented in the AASHTO publication, A Policy on Geometric
Design of Highways and Streets, commonly known as the Green Book'
g. The private roads in the Thornburgh Destination Resort, including the subject roadway, are low-
volume roads as defined by the 2019 MSHTO Guidetines for Geometric Design of Low-Volume Roads.
4. For low-volume road intersections with no traffic control, such as the subject driveway accesses to
the roadway with a 25 MPH speed limit, the recommended intersection sight distance is 95 feet.
5. The intersection sight distance and clear sight triangle requirements are met for all residential
driveway turning movements entering the roadway with a 25 MPH speed limit.
6. The proposed site layout and residential driveways will operate safely and efficiently.
Sincerely,
tta,-Tas
Christopher M. Clemow, PE, PTOE
Transportation Engineer
Attachments - site Plan
Figures TLl-l and TLl-2
t&t00 PG
12<"re*s 3twezozt
Itr cmc TLl Thornburgh Supplemental Sight Distance Analysis - final.docx
EX. 2& CTEMOW ffi dfrANG MYSISc2.00%D021,,rd@Ees-------!eg#6nir-----i!g1S110Isi!iliE!i*IIzJIL!Foz5o.ulEa=@oBJu6uUoLOT 2050lrlFFlCABIN SITE PLANUouUaIffi FORABLN LOTS d TNE OdNHLLLSLDE SW{EALdC THE PNXINoLOT 3IMIIRIOTHISTYPICAL PARKING ROAD / LOT SECTION,/^:-:_--J:.f__
95'Recommended ISD14.5'Setback fromedge of pavementRequired Clear Sight Triangles95' Recommended ISD230'Available lSD{o,ro,4ilable Clear Sight Tria ngles250+'Available ISDScale 1:40Required Clear Sight Triangles14.5'Setback fromedge of pavem€nt95'Recommended ISD95'Recommended ISD250+'Available ISD250+'Available ISDAvaila ble clear SightrTria{6t 20841S€le 1:40FIGURET11.1INTERSECTION SIGHT DISTANCE - Left and Right-Turn with No Traffic ControlThornburgh Destination Resort - Phase 1A - CabinsC&A Project No. 2018{1303.011582 Fetters loopEugen€, Oregon 97402541-579-8315cclemow@clemow-associetes.comCclemowr Ifiatr,:tiar ie:i L L-c
TLl-2FIGURE1582 Fetters LoopEugeng Otegon 971$2541-s79-8315cclemow@clemow-associates.comINTERSECIION SIGHT DISTANCE - Left and Right-Turn with No Traffic ControlC&A Project No. 20180303.01Thornburgh Destination Resort - Phase 1A - Cabinsclemowr:]i-i{rciLt i'c:l l- i-i:C(eTaotlable Clear Sight Tria ngles.5' Setback fromedge of pavementRecommended ISD250+'Available ISD95'Recommended ISD250+'Available ISDIquired Clear Sight TrianglesScale 1:40Clear Sight Trlangles'Recommended ISD14.5'setback fromedge of95'Recommended ISD245'Available ISD250+'Available ISDAvailable clear Sight Triangl4{s,ronScale 1r40
oz-
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E
2 J 4 5 61
LOCATED AT TOWNSHIP 15 SOUTH, REGION 12 EAST SECTIONS 28 & 29
DESCHUTES COUNTY, OREGON
OWNER/DEVELOPER
VICINITY MAP -@- scnr-e, 1" = 1o,ooo'
THORNBURGH RESORT
CABIN SITE PLAN
HICKMAN WILLIAMS & ASSOCIATES INC.
62930 O.B. RILEY ROAD, SUITE 1OO
BEND, OR 97703
P: (541) 389-9351
CENTRAL LAND AND CATTLE COMPANY
2447 NW CANYON DR
REDMOND OR 97756
PH: (541) 350-8479
SURVEYOR/ENGINEER
BB
Cc
DD
n
LEGEND
PROPOSED
CURB
EDGE OF PAVEMENT
WAIER LINE LINE (SIZEAS NOTED)
WATER SERVICE (SIZE AS NOTEO)
SANITARYSEWER LINE (SIZEAS NOTED}
SANITARY SilER SERVICE 1SIZE AS NOTEO)
STORM DMIN {SIZEAS NOTED)
DMINAGE BASIN
COMMON UTILITY LINE
UTILIry SERVICE
3-
21
SHEET INDEX5-SHEET
NUMBER SHEET TITLE
CONCRETE c 1.0
c2.0
c3.0
c4.0
c5.0
BP-'I
BP-2
COVER SHEET
CnerN sni piAN+AX FIRE HYDMNT
WA]ER VATVE (G.V. / B.F V.)
WA]ER METER
ELECTRIC SERVICE
SECIIONALIZING CABINETIMNSFORMER
CLUSTER POSTAT DELIVERY BOX
SIGN
SEWER MNHOLE
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CONTOUR LINE. 1' INTERVAL
CL4RVISION
Uz
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CABIN SETBACKS
ADA PARKING
CLEAR VISION AREAS
SCHEI\4ATIC FLOOR PLAN .24
SCHEI\4ATIC ELEVATIONS - 24
EoEE
tr-o BP-3 SCHEMATIC FLOOR PLAN - 34
BP-4 SCHEMATIC ELEVATIONS - 34
SCHEMATIC FLOOR PLAN - 38
EXISTING BP.6 SCHEMATIC ELEVATIONS - 38' BP-7 SCHeUnrtCrrOOnprnru-nnPROPERry BOUNDARY
EOGE OF PAVEMENT
WATER LINE LINE (SIZEAS NOTED)
SANITARYSEWER IINE (SIZE AS NOTED)
COMMON UTILIry LINE
FIRE HYDMNT
WATER VALVE (G.V. / B,F.V.}
WATER METER
ETECTRIC SERVICE
CABTE W SERVICE/RISER
TELEPHONE RISER
SECTIOMLIZING CABTNETIMNSFORMER
LIGHT
CLUSTER POSTAL DETIVERY BOX
SIGN
SEWER MNHOLE
CONTOUR LINE. 5' INTERVAL
CONTOUR LINE, 1' INTERVAL
BP.8 SCHEMATIC ELEVATIONS - 4A
ss
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':.
':
=
BP.g SCHEMATIC FLOOR PLAN - 48
BP.1O
LC-'1
LC-2
LC-3
LC4
LC-5
LC-6
LC-7
LC-8
SCHEMATIC ELEVATIONS - 4B
LANDSCAPE CONCEPT COVER PLAN
LANDSCAPE LOTS 193.195
LANDSCAPE LOTS 196.198
LANDSCAPE LOTS I99.201
LANDSCAPE LOTS 2'16,2'14
LANDSCAPE LOTS 213.2'1'1
LANDSCAPE LOTS 210-208
LANDSCAPE LOTS 207-205
LC-g LANDSCAPE LOTS 204,202
LC-10 PLANT LEGEND
ll
{ry4ffi
DECIDUOUS TREE. SIZEAS NOTED
JUNIPERTREE,SIZEAS NOTED
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NOTE: FOR CABIN LOTS ON THE DOWNHILL SIDE OF
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ONE
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DESIGN BASED ON SITE GRADING
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ALL LOT9 WILL HAVT LOW-VOLTAGT LANDSCAPE LIGIITING TO
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ALL LOTS WILL HAVT LOW-VOLTAGT LANDSCAPE LIGHTING TO
ILLUIVINATT PATI-1S AND LANDSCAPE A9 NECES9ARY.
LIGI-ITING WILL BT CONTAINTD WITIIIN THE LOT AND WILL NOT
SPRTAD INTO ADJACENT LOTS.
PLAN 9I1OWN 13 CONCTPTUAL- TINAL ADJU9TMENTS TO
DI9TURBANCE LIMIT9 AND DTgIGN LAYOUT WILL DT
UNDTRTAKTN DURING CONgTRUCTION. THT QUANTIry
OF TXISTING JUN TR TRETg 9HOWN TO BT 9AVTD ON
THE FLANS MAY CHANGE DURING CON9TRUCTION A3 WT
DI9COVTR HOW CLOSE DI9TURBANCT LIMIT9 COMT TO
THT ROOT 9TRUCTURT OT THT TRTTS.
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SPECIFICATIONS
sHEETfl BooKfl
PROJ MGR KA
DRAWN:DE
CHECKED:DF
PROJ NO:P2122
DATE:o5-2'l -21
SCALE:1 = 3OLO"
REVISIONS:
A*A*
A XA*A'ArA*A*
SHEET NO:
LC-5
78370 HWY 111, SUrTE 290
LA QUINTA, C4.92253
760.340.4529
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PLAN 9HOWN 15 CONCEPTUAL_ TINAL ADJUSTMTNT9 TO
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OT TXIgTING JUNIFTR TRTTS 9HOWN TO Br SAVrD ON
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78370 HW/ 1 1 1, SUTTE 290
LA QUINTA, CA.92253
760.340.4529
SPECIFICATIONS
SHEET! BooK!
PROJ. MGR.KA
DRAVVN:DE
CHECKED:DF
PROJ, NO:P2122
DATE:05-21-21
SCALE:1"=30-O"
REVISIONS:
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SHEET NO:
LC-6
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PLAN 9HOWN 15 CONCTFTUAL - TINAL ADJUSTMTNTS TO
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OT EXISTING JUNIPTR TRTTg SHOWN TO DT SAVTD ON
THT FLANS MAY CHANGT DURING CONSTRUCTION A9 WT
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SPECIFICATIONS
SHEET! BOOK!
PROJ. MGR
DRAWN:DE
CHECKED:DF
PROJ. NO:P2122
DATE:05-21 -21
SCALE:1" = 30 -O"
REVISIONS:
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SHEET NO:
LC-7
78370 HWY 1 1 1, SUITE 290
LA QUINTA, C4.92253
760.340.4529
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PATHS AND PATIOS
ALL LOT9 WILL IIAVE LOW_VOLTAGT LANDSCAPE LIGHTING TO
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CHECKED:DF
PROJ. NO:P2122
DATE:05-21 -21
SCALE:1 = 30 -O"
REVISIONS.
Ar
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SHEET NO.
LC-8
78370 HWY 1 1 1, SUTTE 290
LA QUINTA, CA.92253
760.340.4529
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PROJ. NO:P2122
DATE:05-21 -21
SCALEi 1" = 30 -O"
REVISIONS
ArA'a*A'A*
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SHEET NO
LC.9
78370 HWY 1 1 1, SUTTE 290
LA QUINTA, CA. 92253
760.340.4529
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pEsttqtus Sq uEw ca rpet x
Cerracarfrus montonus Mountain mahogany x
cultiuqrs Flowerin3 quince x
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oputilolius 'Monlo,Dieblo Nine bark x
Po te nti I Io f nriti co 60 jock mo n i i Jnckman potentilla x
Prunus besseyi Western sand cherry
tridentdto Bitterbrush x x xolpinumpi n* curra nt x
Bibes Cf"rcum Wax currant x x
nib€s visrcsissimum Sticky currant I x
foetldo Auttrion coppcr rosr'xdiKolorPuEsy willow x
solix putputpo ndAa Alaske bluewillow x
caeflico Elue elderberry x x
dtgento buffalo berry x
r bii malda Gol dfl omc 5pi /a ca x
haricarlJus olbus Snowberry X x
n,eycti'Pqlibdn Dwrtf Ko/eun Lilac xx hyddnthiflarc Early fiowering Lilac x
Viburnum x but*wodii Burkwood viburnum x
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SPECIFICATIONS
SHEETE BooKE
PROJ. MGR.
DRAWN:DE
CHECKED:DF
PROJ. NO:P2122
05-21-21DATE:
1" = 30 -O"SCALE:
A'
REVISIONS:
A*
4,,
AtA'A,A,A,
SHEET NO:
LC-10