HomeMy WebLinkAbout2021-11-04 Katzaroff RE 508-SP 849-A - Exhibits 1-71
Tracy Griffin
From:Katzaroff, Kenneth <KKatzaroff@SCHWABE.com>
Sent:Thursday, November 4, 2021 11:27 AM
To:Angie Brewer; Liz Fancher
Subject:RE: 508-SP; 849-A - Exhibits 1-7 [IWOV-pdx.FID4723617]
Attachments:Exhibits 1-7; 508-SP; 849-A.pdf
[EXTERNAL EMAIL]
-508-SP; 849-A Exhibits 1-7
Schwabe Williamson & Wyatt
Kenneth Katzaroff
Attorney
Direct: 206-405-1985
kkatzaroff@schwabe.com
Admitted in Washington and Oregon.
LEARN HOW OUR CLIENTS ARE
INNOVATING IN THEIR INDUSTRIES:
www.schwabe.com/fueling-change
From: Angie Brewer <Angie.Brewer@deschutes.org>
Sent: Thursday, November 4, 2021 11:06 AM
To: Katzaroff, Kenneth <KKatzaroff@SCHWABE.com>; Liz Fancher <liz@lizfancher.com>
Subject: FW: FW: DISREGARD LAST EMAIL - USE THIS ONE - CORRECTIONS [IWOV-pdx.FID4723617]
Hi Ken,
Please see below. Did you intend to attach more support documents?
Thanks,
Angie
From: Gregory Frank <gregportlandlaw@gmail.com>
Sent: Thursday, November 4, 2021 10:41 AM
To: Angie Brewer <Angie.Brewer@deschutes.org>
Subject: Re: FW: DISREGARD LAST EMAIL - USE THIS ONE - CORRECTIONS [IWOV-pdx.FID4723617]
[EXTERNAL EMAIL]
2
Angie
Were the attachments actually attached to the Katzaroff letter? I did not see them on the above pdf's... If not,
how can I access them?
Greg
On Thu, Nov 4, 2021 at 5:57 AM Angie Brewer <Angie.Brewer@deschutes.org> wrote:
Hi Greg,
The applicant has asked me to share the attached documents with you in advance of this evening’s hearing. I
received the email he’s referring to as an older, now corrected version, at nearly the same time. As a result, I’m
only sending you the corrected version. If you’d like to see both, please let me know.
Thank you and see you by Zoom this evening!
Angie
From: Katzaroff, Kenneth <KKatzaroff@SCHWABE.com>
Sent: Thursday, November 4, 2021 4:37 AM
To: Angie Brewer <Angie.Brewer@deschutes.org>
Cc: liz@lizfancher.com; Schunk, Andrea K. <ASchunk@SCHWABE.com>
Subject: DISREGARD LAST EMAIL - USE THIS ONE - CORRECTIONS [IWOV-pdx.FID4723617]
[EXTERNAL EMAIL]
Angie –
Because it’s 4:30am, I mistitled one of the document files. Please use these corrected versions.
Per last email, I’ve made two quick corrections to these documents, including adding the exhibit list to the last
page. If you could please swap them out in the record and send the corrected versions to the hearings officer, it
would be much appreciated.
3
Ken
Schwabe Williamson & Wyatt
Kenneth Katzaroff
Attorney
Direct: 206-405-1985
kkatzaroff@schwabe.com
Admitted in Washington and Oregon.
LEARN HOW OUR CLIENTS ARE
INNOVATING IN THEIR INDUSTRIES:
https://smex-
ctp.trendmicro.com:443/wis/clicktime/v1/query?url=www.schwabe.com%2ffueling%2dchange&umid=04bbd
623-9027-49bd-ac08-364c925c1291&auth=b6e5f914caa071e97c22b57421b394cc38777e44-
362fba1907cdd8ce717c3729705f2739a0476564
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247-18-000386-TP/454-SP/592-MA Hearings Officer Decision
HEARINGS OFFICER DECISION
FILE NUMBER: 247-18-000386-TP / 454-SP / 592-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:
A. 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
15-12-5000 11800 Eagle Crest Blvd.
15-12-5001 11810 Eagle Crest Blvd.
15-12-5002 11820 Eagle Crest Blvd.
15-12-7700* 67205 Cline Falls Rd.*
15-12-7701 67705 Cline Falls Rd.
15-12-7800* 67555 Cline Falls Rd.*
15-12-7801* 67525 Cline Falls Rd.*
15-12-7900* 67545 Cline Falls Rd.*
15-12-8000 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 lot 7700, four lots of record).
Mailing Date:
Tuesday, October 30, 2018
LUBA 2018-140 Record - Page 0041
EXHIBIT 1
247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 20 of 81
TITLE 18 OF THE DESCHUTES COUNTY CODE, COMPLIANCE WITH THE FINAL MASTER PLAN:
1. Approval is based upon the submitted plan. Any substantial change to the approved plan
will require a new application.
Hearings Officer: Two principle arguments are made for why this criterion is not met. First, it is
contended that these applications either are not properly before me or must be denied because
they do not seek approval or propose development of what Mr. Dewey contends is the required
complete Phase ‘A’. Second, it is alleged that the applicant has not demonstrated compliance with
numerous facets of the FMP or that certain aspects of the proposal constitute a substantial change
to the FMP, requiring an application for a modification. DCC 18.113.080 explains that a substantial
change to a destination resort CMP is one that alters “the type, scale, location, phasing or other
characteristic of the proposed development such that the findings of fact on which the original
approval was based would be materially affected.” I agree with staff that although this applies to
changes between a CMP and FMP it provides guidance for evaluating whether a tentative plan
conforms to the FMP. Finally, it is noted that the discussion below also addresses issues raised
under specific relevant FMP conditions of approval.
Phasing and timing/assurance of improvements: Mr. Dewey states a “fundamental problem”
with the subdivision application is that it focuses on the 192 private residences rather than all the
requirements for a destination resort “that are necessary in order to allow the subdivision in the
first place”. He argues that the statutes, Code and CMP/FMP conditions of approval do not anticipate
the applicant dividing its Phase ‘A’ into subphases. See, August 28, letter. He further contends that
the first tentative plat application necessarily constitutes the “first phase” and “must include the
core features which make a development a destination resort.” These “core facilities” include the
OLU’s, developed recreation facilities, restaurants and meeting rooms. He also argues that since
ORS 197.445 expressly authorizes financial assurances for OLU’s, but not other facilities, approval
for those facilities must be sought in this application and must be constructed rather than phased
in or financially assured. See, September 25, letter. He contends that the application must provide
for the entire 150 OLU’s and it is not sufficient for the applicant to state that the balance will be
provided on Future Development Tract ‘A’. Accordingly, the tentative plan must be denied unless an
application for a modification is filed and approved.
The application is for Tentative Plan approval for a part of Phase ‘A’. It is for a subdivision. The
applicant argues that nothing in the statutes, Code or CMP/FMP approval requires it to submit for
an entire phase. It simply is seeking approval “to do some of the work authorized and required to
occur in Phase A.” The applicant acknowledges that it “remains obligated to fulfill all Phase A
requirements before selling lots” and has agreed to restrictions to that effect. Sept. 11, letter.
Further, the FMP does not prescribe phase boundaries and neither of the two relevant maps are to
scale. FMP Exhibit G1.1b and “Phasing Plan – Exhibit #B-1.08 August 11, 2008. Rather, the phasing
plan shows what type of development may, and in some cases must occur in each phase of
development. The approval anticipates adjustments and refinements as approvals are sought.
LUBA 2018-140 Record - Page 0060
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247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 23 of 81
specificity about the ultimate mix and location of recreational facilities if the statutorily (and
presumably Code) requirements are met. Gould v Deschutes County, LUBA No. 2008-203.
In this regard, the applicant supplied a chart showing specific differences between FMP Phase A and
the tentative plan.
ITEM Phase A Tentative Plan
Residential Single Family (RSF) 300 192
Hotel Overnight 0 0
Residential Overnight 150 37 lots for about 110
overnight units;
bond for about 40
Net Overnight 150 150
Ratio – RSF/Overnight 2.00 1.28
I agree with the applicant that none of these differences are modifications of the FMP as: (a) the
FMP and resort code do not require that all development authorized in any one phase of the FMP
occur at the same time or consolidation of the many land use reviews that are needed for Phase A
development; and (b) the changes, if viewed as such, do not affect the material facts or compliance
with relevant approval criteria. The law requires that each phase combined with each prior phase
continue to meet minimum resort development criteria, but it does not prescribe that each and
every land use approval needed to build each phase be obtained at one time. DCC 18.113.070(E).
The FMP authorizes development up to the limits established for Phase A. As is clear from the resort
code, the 300 units of RSF is a cap; not a minimum or precise requirement. The residential overnight
requirement is reflective of a minimum code and FMP requirement (Condition 33 of FMP). 150
rentable units must be provided by construction or bonding prior to the sale of single-family home
lots (50 must be constructed; not bonded). The tentative plan provides 37 lots where rentable units
will be constructed. Once the 50 rentable units have been constructed lot sales will be allowed by
the FMP.
The tentative plan proposes to plat single-family dwelling lots in the same general areas of the
property with the same general layout and approximate road locations shown on the Residential
Development Plan, Exhibit G.1.1b. This is what was required by DCC 18.113.090(I), the CMP and
FMP, as written when the CMP and FMP were filed. The TP and final plat establish and show the
precise locations of lots and road. Thus, there is no material change as the FMP contemplates should
be done at the tentative plan approval stage.
I can find nothing in the destination resort statutes, the Code, the CMP or the FMP that mandates
that an applicant file all development applications for a particular phase at once. The Code expressly
permits financial assurances for such facilities provided they are constructed or assured prior to
closure of sales, rental or leasing of any residential lots.
LUBA 2018-140 Record - Page 0063
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Breaking Phase ‘A’ into subphases does increase the risk of a “sagebrush subdivision”. If the
applicant constructs the single-family dwellings and never completes the other requirements of
Phase ‘A’ the existence of homes places significant pressure to allow them to be occupied. But that
could occur under the statutes and Code even if all of Phase ‘A’ obtained land use approval rather
than being split into subphases. The applicant states it will demonstrate compliance with all
required elements of Phase ‘A’ in conjunction with future site plan applications and a second
tentative plan to be submitted before any lots are sold, leased or rented as part of its next round of
applications for Phase 'A'. It offered a development agreement as an additional assurance. Sept. 11,
submittal. I find that the development agreement adds nothing significant, rather a condition of
approval set forth at the end of this subsection is necessary.
Finally, both parties allude to changes in the destination statutes or Code that the applicant states
do not apply as the prior approvals were granted under a prior version. Neither party submitted or
expressly cited the prior version to which they allude, so I cannot evaluate, what, if any relevance
whatever change occurred may have.
Overnight lodging units. Mr. Dewey and Central Oregon Land Watch also allege that the TP
cannot be approved because it does not demonstrate how the OLU’s will qualify as OLU’s, citing the
Caldera decisions. See, Dewey August 28, letter at 4, COLW September 25, letter. Those decisions
involved conceptual master plan approval for an expansion of a destination resort. The applicant
sought to rely on the use of “lock-out” units in the original development to demonstrate that it had
met the requirement for 150 separate rentable units in ORS 197.445. At issue was whether the
specific lock-out units met that standard. See e.g. Central Or. Landwatch v Deschutes County, LUBA No
2016-065 (2017).
I agree that ensuring that the OLU’s meet the statutory and Code provisions is “integral” to a
destination resort. But I find nothing in the statutes, Code, the FMP or those decisions that supports
the conclusion that this issue must be resolved at the TP stage. A tentative plat approves lots. It
does not address design or construction absent some indication that the lots proposed could not
physically accommodate the uses for which they are created. The applicant has stated that it will
demonstrate that the OLU’s comply when it submits a site plan review application for the OLU’s.
Although DCC Chapter 18.124 Site Plan Review does not expressly reference OLU’s, its purpose is
to evaluate the specific layout and design of proposed improvements to ensure compliance with
the Code, and in this case the FMP and statutes. It prohibits issuance of building, grading and other
such permits until site plan review approval is obtained. It is evident that this is the stage that the
applicant must demonstrate that the design of the OLU’s is compliant. To ensure that occurs, I have
addressed OLU’s in the condition below.
Water Mitigation. Mr. Dewey contends that the applicant is substantially modifying the Fish
and Wildlife Mitigation Plan relied on in the FMP approval (FWMP). He notes that it states that:
“Mitigation must be provided in advance for the full amount of water to be pumped under each
phase of development and must meet the requirements of ‘mitigation water’ (OAR 690-505-0605)”
FWMP at page 9. He notes that the applicant’s Burden of Proof states that “The full amount of
mitigation required by OWRD for uses allowed outright by the first phase of development is
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approximately 50 acres of water.” This reference is to the 192 single family dwellings that are the
subject of the TP but does not reference the OLU’s or any other uses required to be provided in
Phase ‘A’. August 28, submittal.
He states in his September 11, submittal that the FWMP addendum provided in part that the timing
of water needs is tied to a phased development plan. The addendum states that “the mitigation
obligation for Phase A is 610 AF.” The FWMP represented that under the Final Order and OWRD
rules, mitigation must be provided in advance for the full amount of water to be pumped under
each phase of development and that the Incremental Mitigation Plan submitted to OWRD describes
the proposed timing and methods for meeting the mitigation obligation in two phases of water
development. The FWMP states that the mitigation measures identified in consultation with ODFW
are designed to ensure no net lost of habitat quantity or quality and net benefits to the resource.
Sept. 11, submittal.
On July 10, 2018 OWRD granted the applicant’s request to modify the incremental development plan
for Permit G-17036. (IDP) The modification shifts the initial 3.6 AF mitigation from 2013-2016 to
2013-2019. Instead of the entire balance of 1352 AF being shown in 2017, it is staged over four five-
year periods. It requires an annual update of water used and that mitigation must be provided
annually regardless of whether any water was used. Mr. Dewey asserts that the new OWRD plan is
not oriented to any particular phase, but rather to time periods.
He cites to Ms. Fancher’s September 11, letter in which she states that the amount required for
mitigation for development envisioned in the tentative plat is 50 acres, with total mitigation of 203
acres when full pumping is achieved after all cabins and facilities in Phase ‘A’ are constructed and in
use. Thus, the significant changes between the FMP approved plan and the new one include the
reduction of mitigation for Phase A from 610 to 203 AF and the timing of mitigation from in advance
of each phase to after construction. He contends that the 2008 ODFW letter approving fish
mitigation was based on the promised phasing. Finally, he contends that Condition 10 was talking
about the FMP mitigation plan and the OWRD permit on which it was based. Therefore, the OWRD
permit approved prior to FMP approval controls and cannot be modified without a modification to
the CMP /FMP and is inconsistent with Conditions 10 and 38.
Ms. Fancher argues that the provision of mitigation water (other than the 106 AF for Wychus Creek)
is tied to pumping and the use of water under the water rights permit, not to phases of
development. She notes that the original IDP only had two incremental steps so clearly was not tied
to the seven development phases. The July 10, OWRD letter states that the “requested modifications
… match the mitigation obligation of groundwater permit G-17036’ and are incorporated as part of
the permit. She contends that the IDP was not relied on in the mitigation plan to achieve compliance
with the approval criteria and, therefore, may be revised without revising the FMP if the mitigation
obligations set out in the mitigation plan are honored. She states that the opponents have not
shown that the change will have any negative impact on groundwater quality. September 25,
submittal.
Attached to Ms. Fancher’s response is a Sept. 25, letter from David J. Newton, a licensed Engineering
Geologist and Water Rights Examiner and the author of the addendum to the Fish and Wildlife
LUBA 2018-140 Record - Page 0065
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Mitigation Plan. Mr. Dewey objects to consideration of the letter on the grounds that it is not so
much a response to his arguments as an assertion as to why it is reasonable to amend the FWMP. I
disagree. The letter appears to be a direct response to the arguments that the IWP is inconsistent
with Condition 38 and constitutes a modification of the FWMP and FMP.
Mr. Newton notes that the FWMP Addendum lists five mitigation measures to satisfy the no net
loss/no degradation standard, including “compliance with OWRD mitigation requirements”. Under
that heading, it states that Thornburgh “will at all times comply with the terms and conditions of the
OWRD water right approval”. It notes that the terms and condition include “providing flow
mitigation for each phase of development prior to beginning water use”. He argues that this
provides flexibility because OWRD rules permit changes to the IDP with the only caveat being that
“all water needed for each increment of development be provided upfront”, i.e. mitigation before
ground water withdrawals. The permit itself provides for approval to change the IDP. He states that
the amended IDP reduces ground water use in the early years thus spreading potential impacts
over a longer period. The permit continues to require that neither the rate or amount of diversion
be increased before increasing the corresponding mitigation and that mitigation must be provided
prior to “each stage of development under the permit”.
Mr. Newton notes that the 2007 IDP proposed two increments. The first would be provided all at
once as the relevant development was expected to occur quickly. He states that the IDP
contemplated that the second phase could be broken down into subphases. Rather than full water
use occurring in five years it now will take as long as 17. But mitigation always is tied to and provided
prior to water use. He references OWRD rules requiring that mitigation be provided prior to
development of the permit, (which I understand to refer to water permit) and authorizing changes
to an IDP provided the rate or amount of diversion is not increased prior to the corresponding
required mitigation.
Mr. Dewey also objects to Exhibit ‘A’ to CLCC’s September 25, submittal which is a copy of a letter
submitted in the 2017 proceeding. Exhibit ‘A’ purports to show phased water usage over 7 phases
with 3 subphases, including “Phase A-1”. There is no indication as to who prepared the chart or
where the data came from. It was submitted during the open record period, however, so is admitted
but I am not considering it as its reliability and relevance is unsubstantiated notwithstanding the
reference to it in Ms. Neuman’s Oct. 8, letter.
Ms. Neuman’s letter flatly states that under applicable law, the applicant must provide pro rata
mitigation in advance of water use and the applicant neither can nor is proposing to reduce or
postpone mitigation as claimed by Mr. Dewey.
As noted, there appear be three categories of alleged noncompliance. Although they overlap, I will
try to address each somewhat separately in hopes that will provide some clarity to my analysis.
There are two components to the mitigation. There is the basic replacement of consumed water
which appears to have been the focus of OWRD. In her discussion of the fish mitigation plan the
Hearings Officer found that the applicant was to provide 1,356 acre-feet of mitigation water. She
found that the OWRD mitigation requirement adequately addresses water quantity, and
LUBA 2018-140 Record - Page 0066
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presumably to some extent quality but not fully. She was concerned with the ODFW concerns about
springs and water temperatures. In that regard, she relied on how the FWMP proposed to provide
water, such as removal of existing wells, removing the two diversion dams and the additional
requirement to provide water for Whychus Creek from the Sisters Irrigation District which I found
adequate in my prior decision on the FMP with the modification that it be placed in stream no later
than the date that groundwater pumping to serve the development commences. The applicant
asserts, and I agree, that it is not proposing to modify any of the latter steps. Nor is it proposing to
modify the overall amount of mitigation water to be provided. The issue is the timing of when the
OWRD quantity of mitigation water will be provided.
The prior hearings officer did not address the IDP schedule of consumption and mitigation. It seems
evident that the FWMP uses the terms “phase” to mean the land development phases, i.e. the two
villages, Tribute and Pinnacle. The first was anticipated to be developed essentially all at once with
the latter over a few years. These appear to correspond to what the original IDP terms as an
“Incremental Step”.
The FWMP Addendum references “estimated” water development and rates of withdrawal. It is
based on consumptive use, i.e. the amount of ground water appropriation that will not otherwise
return to surface water flows. Referencing the ODRW rules, it states that the “amount of mitigation
required – or ‘mitigation obligation’ – is equal to the amount of consumptive use on an annual basis.”
It states that the OWRD permit is based on a submitted mitigation plan. But it then states that “the
mitigation obligation for each phase of development must be provided in full before water use may
begin for that phase”. Similarly, it states that “mitigation must be provided in advance for the full
amount of water to be pumped under each phase of development.” It then states that the
“Incremental Mitigation Plan” proposes “two phases of water development”. I assume this is a
reference to the Incremental Development Plan. Finally, it states that Thornburgh will at all times
comply with the terms and conditions of the OWRD water right approval, providing flow mitigation
“for each phase of development prior to beginning water use”.
In the summary of mitigation and enhancement measure it states that the plan requires
“compliance with OWRD mitigation requirements” and that the applicant “will at all times comply
with the terms and conditions of the OWRD water right approval.
The FMP requires compliance with the FWMP in three ways. Condition No. 1 is the general condition
that the approval is based on the submitted plan (used generically but presumably including the
FWMP) and “any substantial change” will require a new application. Condition 10 requires that the
applicant provide at the time of tentative plat/site plan for each individual phase of the resort
development, updated documentation for the water right permit, and an accounting of the full
amount of mitigation as required under the water right, for that individual phase. Condition 38
states that the applicant “shall abide by the April 2008 Wildlife Mitigation Plan, the August 2008
Supplement” and provide annual reports.
I find that the 2018 modification to the IDP does not constitute a substantial change to the approved
FWMP and is consistent with the FWMP. The primary focus of the FWMP, the OWRD and the IDP all
are on mitigating use of water. As the applicant has stressed, if there is no water use, there is no
LUBA 2018-140 Record - Page 0067
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impact. It seems relatively clear that references to phases and specific dates provide a framework
for estimating use, consumptive use and mitigation but were not intended to lock in a certain
development pattern or timing. The opponents have provided no evidence that modifying the IDP
to reflect the current resort development schedule in any way impacts the efficacy of mitigation and
the applicant’s expert testimony is that it will not. To the contrary, there is evidence that the longer
timeframe for water consumption will result in more gradual spread out impacts.
As discussed above, the resort phasing plan largely was conceptual; the change or refinement
represented by the applications before me is not substantial.
I find no basis to conclude that the OWRD permit and IDP in existence at the time of FMP approval
is locked in stone. The OWRD permit was issued under administrative rules that permit
modifications to the IDP to reflect the actual timing of water use and resulting mitigation. The OWRD
permit itself provides that the permittee may seek changes to the IDP provided that there can be
no increase in the rate or amount of water diversion before increasing the corresponding mitigation
and that mitigation be provided prior to each stage of development under the permit. Opponents
do not argue that failure to meet the timelines in the original IDP in itself is a violation but the
argument that the IDP is locked in, taken to its logical conclusion, would mean that the applicant
must start over because it has missed those timeframes. Had the FMP approval meant to lock in
the IDP schedule there would have been some discussion of the particular importance of that
schedule in the FMP decision.
The July 10, OWRD letter states that the “requested modifications … match the mitigation obligation
of groundwater permit G-17036’ and are incorporated as part of the permit.” The opponents do
not contend that the revised IDP is inconsistent with that permit.
Mr. Dewey asserts that the new “OWRD mitigation plan” is not oriented to any particular phase but
rather to time periods. I do not understand the IDP revision to permit the applicant to provide
mitigation by time rather than when development and water use occur. The permit expressly
requires the latter as discussed above. It is noted that even the original IDP had a time period for
Phase ‘B’. Again, as discussed above those timelines are not controlling, they simply reflect estimates
of when the use of water and resulting mitigation may occur.
I see nothing in the June 13, 2008 ODFW letter stating that ODFW intended to require that the
proposed phasing of land development be locked in. The focus of the letter is ensuring that
mitigation timing be such that the applicant provides water instream above its average daily impact
during the irrigation season, with a resulting net deficit outside of irrigation season. The opponents
do not provide any argument or evidence that the revised IDP alters that timing. The balance of the
letter focuses on dam and well removal which the applicant states will be done as originally
approved. To clarify, as represented in Mr. Newton’s Sept 25 letter the first dam (Nolan and
Reimenschneider property) must be removed prior to beginning construction under the tentative
plat approval at issue.
Ultimately, I disagree with the assertion that the applicant impermissibly is attempting to change
when the required mitigation will happen. The key to the FMP, the OWRD permit and the ODFW
LUBA 2018-140 Record - Page 0068
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letter is that mitigation occur in advance of using water. It is to mitigate water use, not development
approvals.
Mr. Dewy cites to an August 28, email from Matt Singer, general counsel for COID, stating that it is
COID’s position that there are no current or active agreements with Thornburgh but acknowledging
that the applicant may have a different position. August 22 and 23 emails from David Arnold state
that he cannot find mitigation credits on the OWRD website. In a September 25, letter Albert N.
Kennedy states that Thornburgh has an approval of its irrigation plan and that the approval states
that the COID Irrigation Plan Contract will be executed following final approval of the FMP. This all
suggests that there may be some sort of potential dispute with COID.
Mr. Dewey also cites to an excerpt of a document suggesting that Big Falls Ranch proposed and
OWRD proposes to approve a transfer of surface water points of diversion to groundwater points
of appropriation which Mr. Dewey asserts was to be used for mitigation by Thornburgh Sept. 25,
letter.
Mr. Newton responds that the 2008 Groundwater Mitigation Plan discusses the potential use of
COID water, it authorizes the use of any “quantity” water within the General Zone and does not
mandate COID water. Page 9 of the May 2008 Tetra Tech Evaluation of impacts of the Thornburg
resort states that Thornburgh has entered into an agreement with COID to acquire 288.75 acres of
water rights generating 519.8 AF of mitigation located within the General Zone of Impact. It also
states that Thornburgh has entered into an agreement to purchase surface water rights generating
836.93 AF of mitigation in the General Zone of Impact. Both references cite the 2008 Newton
Mitigation Plan Addendum. That report discusses the need to provide mitigation within the General
Zone. It states that Thornburgh has secured 85.24 acres of water rights located “within COID”
projected to result in 153.43 AF of mitigation. It also states that Thornburgh has an agreement to
purchase surface water rights from Big Falls Ranch within the General Zone to generate 836.82 AF.
The initial transfer is expected to result in 315 AF of mitigation.
Ms. Neuman states that the Big Falls Ranch transfer from a surface water diversion on Deep Canyon
Creek to an existing well does not mean that it is unavailable for quantity mitigation in the future.
To the contrary, it is consistent with Thornburgh’s mitigation. She states that the applicant has the
right to obtain the necessary water from the Ranch.
The June 13, ODFW letter references COID water and that “flows from COID during the irrigation
season provide a net benefit in instream flows for the Deschutes River”. It seems to focus primarily
on the Big Falls Ranch, however, stating that that “During the irrigation season when ODFW is most
concerned about impacts to springs and flows in the Deschutes River, the mitigation water from the
springs in Deep Canyon Creek exceeds the flows needed to mitigate from spring and seem impacts.”
The FMP also references both water sources, primarily the Big Springs Ranch and that “the
remaining mitigation water is to be obtained from” COID. (Page 22 and 24).
It appears to me, therefore, that both ODFW and the Hearings Officer relied on those sources in
reaching their respective conclusions that mitigation was adequate. While it may be that a change
LUBA 2018-140 Record - Page 0069
EXHIBIT 1
247-18-000386-TP / 454-SP / 592-MA Hearings Officer Decision Page 33 of 81
9. Satisfied.
10. Applicant shall provide, at the time of tentative plat/site plan review for each individual
phase of the resort development, updated documentation for the state water right permit
and an accounting of the full amount of mitigation, as required under the water right, for
that individual phase.
Hearings Officer: The staff report states that the applicant has provided updated documentation
that shows Pinnacle Utilities, LLC owns water rights permit # G-17036, which is a permit for a quasi-
municipal use of water granted by Oregon Water Resources Department for this project. These
documents are Exhibits 5 (Thornburgh Utility Group Water Rights Permit) and 6 (Transfer of Permit
to Pinnacle Utility) of the applicant’s submitted materials for the TP. The applicant states that due
to unforeseen developmental delays, Pinnacle Utilities, LLC filed to extend the water rights permit
to 2035. The applicant states that Pinnacle will phase development of its system to match the
phased development of the destination resort. The applicant states that the full amount of
mitigation required by OWRD for uses allowed outright by the first phase of development is
approximately 58 acres of water.
Prior to expiration of the deadline for using the water under its water rights permit, Pinnacle applied
to extend the permit timeframe. In May 2018 OWRD issued a Proposed Final Order denying the
Request, which is in the record. In June 2018 OWRD issued a Proposed Final Order withdrawing the
prior Proposed Final Order and proposing to approve the extension. Ex. L to Fancher Sept. 25,
submittal. Ms. Gould filed a protest, which is in the record. On August 21, counsel for Mr.
DeLashmutt and Pinnacle responded and asked that the protest be denied for various reasons. On
August 24, the OWRD Watermaster for the Deschutes Basin sent an email to the County stating that
“Thornburgh has done everything needed to be in compliance and good standing with OWRD in
regard to permit G-17036 as well as purchasing mitigation credits and providing in stream flow
benefits without even using any water yet.” September 11, letter from Janet E. Neuman. In a
September 25, letter Ms. Neuman stating that the permit is in full force and effect at this time, which
I take to mean that the extension approval remains valid pending resolution of the appeal. She
states that the permit holder may proceed with development of the water use. Further, even if
denied, Pinnacle holds hundreds of water rights that it could use for water supply rather than the
rights under the permit.
I have addressed the issues associated with whether the extension appeal or IDP modification
constitutes noncompliance with or a substantial change in the FMP or its conditions. Beyond that,
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.” The record contains
what appears to be a complete documentation of the status of the permit and IDP. This criterion is
met.
11. Satisfied.
LUBA 2018-140 Record - Page 0073
EXHIBIT 1
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
EXHIBIT 2
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
EXHIBIT 2
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
EXHIBIT 2
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
EXHIBIT 2
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.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-OOO88'l-SP Thornburgh Golf Course Page5of17
EXHIBIT 2
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
EXHIBIT 2
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
EXHIBIT 2
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/sfindings 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
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-OOO881-SP Thornburgh Golf Course page g of 17
EXHIBIT 2
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
EXHIBIT 2
"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
EXHIBIT 2
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
EXHIBIT 2
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
EXHIBIT 2
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
EXHIBIT 2
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)
EXHIBIT 2
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( ).
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File No. 247-19-000881-SP Thornburgh Golf Course Page15of17
EXHIBIT 2
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
EXHIBIT 2
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.
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File No. 247-'19-OOO881-SP Thornburgh Golf Course Page 17 of 17
EXHIBIT 2
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.
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EXHIBIT 2
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).
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EXHIBIT 2
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
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EXHIBIT 2
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:
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EXHIBIT 2
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
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EXHIBIT 2
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.''
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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.
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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
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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
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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
EXHIBIT 2
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
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EXHIBIT 2
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.
Board of County Commissioners Decision, Document No. 2020-579
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EXHIBIT 2
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
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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
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EXHIBIT 2
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 2
For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
FILE NUMBER: CU -05-20
HEARING DATE: December 20, 2005
APPLICANT: Thornburgh Resort Company, LLC
Kameron DeLashmutt
c/o Schwabe, Williamson & Wyatt, P.C.
354 SW Upper Terrace Dr., Suite 101
Bend, OR 97702
541) 318-9950
OWNER'S Schwabe, Williamson & Wyatt, P.C.
REPRESENTATIVE: Peter Livingston, Attorney at Law
1211 SW Fifth Ave., Suite 1600
Portland, OR 97204
503) 796-2892
Myles Conway, Attorney at Law
354 SW Upper Terrace Dr., Suite 101
Bend, OR 97702
541) 749-4019
Martha Pagel, Attorney at Law
1011 Liberty St., SE
Salem, OR 97302
503) 796-2872
STAFF REVIEWER: Devin Hearing
I. APPLICABLE STANDARDS AND CRITERIA:
Title 18 of the Deschutes County Code, Zoning Ordinance:
Chapter 18.16. EXCLUSIVE FARM USE Tumalo/Redmond/ Bed Subzone (EFU-
TRB):
Page 1 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006-1D C
s
2 0 0as 151
EXHIBIT 3
A. Chapter 18.113. DESTINATION RESORTS ZONE - DR
1. 18.113.010. Purpose.
2. 18.113.020. Applicability.
3. 18.113.025. Application to existing resorts.
4. 18.113.030. Uses in destination resorts.
5. 18.113.040. Application submission.
6. 18.113.050. Requirements for conditional use permit and
conceptual master plan applications.
7. 18.113.060. Standards for destination resorts.
8. 18.113.070. Approval criteria.
9. 18.113.075. Imposition of conditions.
10. 18.113.080. Procedure for modification of a conceptual
master plan. 18.113.090. Requirements for final master
plan.
11. 18.113.100. Procedure for approval of final master plan.
12. 18.113.110. Provision of streets, utilities, developed
recreational facilities and visitor -oriented accommodations.
B. Chapter 18.128. CONDITIONAL USE
1. 18.128.015. General standards governing conditional
uses. 18.128.020. Conditions.
2. 18.128.030. Performance bond.
C. Title 22, the Deschutes County Land Use Procedures Ordinance.
D. Title 23, The Deschutes County Comprehensive Plan.
E. Statewide Planning Goals (OAR 660-015-0000)
II. BASIC FINDINGS:
A. LOCATION: The subject property includes roughly 1,970 acres of land located
west of Redmond, Oregon, on the south and west portions of a geologic feature
known as Cline Buttes. The property is bordered on three sides by BLM land,
and is also in close proximity to Eagle Crest, another destination resort
development. The subject property is identified on County Assessor's Index map
as 15-12 (index) as tax lots 5000, 5001, 5002, 7700, 7701, 7800, 7801, 7900 and
8000.
B. ZONING: The subject property is zoned Exclusive Farm Use -
Tumalo/Redmond/Bend Subzone (EFU-TRB). The subject property is also
mapped as part of the Destination Resort (DR) overlay zone for Deschutes
County.
Page 1 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05-20, DC NO. 2006451
EXHIBIT 3
IV. CHAPTER 18.128. CONDITIONAL USE:
18.128.015. General standards governing conditional uses.
A. Except for those conditional uses permitting individual single-family
dwellings, conditional uses shall comply with the following standards in
addition to the standards of the zone in which the conditional use is located
and any other applicable standards of the chapter:
1. The site under consideration shall be determined to be suitable for the
proposed use based on the following factors:
a. Site, design and operating characteristics of the use;
b. Adequacy of transportation access to the site; and
c. The natural and physical features of the site, including, but not
limited to, general topography, natural hazards and natural
resource values.
For the reasons stated in its discussion of the destination resort criteria, the Board
concludes that this criterion is met.
B. The proposed use shall be compatible with existing and projected uses on
surrounding properties based on the factors listed in DCC 18.128.015(A).
The Board concludes that Applicant adequately demonstrated that it is feasible for the
destination resort to be compatible with existing and projected uses on surrounding properties,
provided Applicant complies with conditions of approval imposed to assure such compatibility.
This criterion is met.
C. These standards and any other standards of DCC 18.128 may be met by the
imposition of conditions calculated to insure that the standard will be met.
18.128.020. Conditions.
In addition to the standards and conditions set forth in a specific zone or in
DCC 18.124, the Planning Director or the Hearings Body may impose the following
conditions upon a finding that additional restrictions are warranted.
A. Require a limitation on manner in which the use is conducted, including
restriction of hours of operation and restraints to minimize environmental
effects such as noise, vibrations, air pollution, glare or odor.
B. Require a special yard or other open space or a change in lot area or lot
dimension.
C. Require a limitation on the height, size or location of a structure.
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EXHIBIT 3
D. Specify the size, number, location and nature of vehicle access points.
E. Increase the required street dedication, roadway width or require additional
improvements within the street right-of-way.
F. Designate the size, location, screening, drainage, surfacing or other
improvement of a parking or loading area.
G. Limit or specify the number, size, location, height and lighting of signs.
H. Limit the location and intensity of outdoor lighting and require shielding.
I. Specify requirements for diking, screening, landscaping or other methods to
protect adjacent or nearby property and specify standards for installation
and maintenance.
J. Specify the size, height and location of any materials to be used for fencing.
K. Require protection and preservation of existing trees, vegetation, water
resources, wildlife habitat or other significant natural resources.
L. Require that a site plan be prepared in conformance with DCC 18.124.
18.128.030. Performance bond.
The Planning Director or Hearings Body may require Applicant to furnish the
County with a performance bond or other adequate form of assurance to guarantee
development in accordance with the standards and conditions attached in granting a
conditional use permit.
DCC 18.128.030 authorizes the imposition of a bond, ifneeded, to guarantee
development in accordance with any conditional use standards or conditions. It does not impose
new standards of approval.
V. DESCHUTES COUNTY COMPREHENSIVE PLAN DCC 23.84.030 states the
County's goal:
To provide for development of destination resorts in the County consistent with
Statewide Planning Goal 8 in a manner that will be compatible with farm and forest uses,
existing rural development, and in a manner that will maintain important natural features, such as
habitat ofthreatened or endangered species, streams, rivers and significant wetlands."
The County mapped several areas, including the subject property, as eligible under Goal
8 for destination resort development. That map has been acknowledged by the Department of
Land Conservation and Development. This application is consistent with the County
comprehensive plan. See BOP, Land Use Map, Ex. 1, A-2 (DR Overlay).
Page 88 of 99 — BOCC THORNBURGH FINDINGS AND DECISION — CASE NO. CU -05- 20, DC NO. 2006-151
EXHIBIT 3
EXHIBIT 4
EXHIBIT 4
EXHIBIT 4
EXHIBIT 4
EXHIBIT 4
Exhibit 5
Exhibit 5
Exhibit 5
7801
7900
7800
1
SHEET
DATE: 9/13/21SCALE: 1" = 600'
CENTRAL LAND AND CATTLE COMPANY LLC
EXISTING TAX LOTS
DRAWN BY: MPD
LOCATED IN THE NORTH HALF OF THE SOUTHEAST QUARTER (N1/2 SE1/4) OF
SECTION 29, TOWNSHIP 15 SOUTH, RANGE 12 EAST, W.M.,
DESCHUTES COUNTY, OREGON
NORTH
EXHIBIT B-1
Exhibit 6
7801
7800
2
SHEET
DATE: 9/13/21SCALE: 1" = 600'
CENTRAL LAND AND CATTLE COMPANY LLC
LOT LINE ADJUSTMENT 1
DRAWN BY: MPD
LOCATED IN THE NORTH HALF OF THE SOUTHEAST QUARTER (N1/2 SE1/4) OF
SECTION 29, TOWNSHIP 15 SOUTH, RANGE 12 EAST, W.M.,
DESCHUTES COUNTY, OREGON
NORTH
EXHIBIT B-1
AREA BEFORE ADJUSTMENT = 436.5± Ac
AREA AFTER ADJUSTMENT = 474.76± Ac
ADJUSTED TAX LOT 7900
AREA BEFORE ADJUSTMENT = 38.76± AcAREA AFTER ADJUSTMENT = 0.50 Ac
Exhibit 6
247-17-000775-ZC, 247-17-000776-PA, 247-18 000241-A, 247-18-000247-A
EXHIBIT “G” TO ORDINANCE 2019-002 Page 1
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBERS: 247-17-000775-ZC, 247-17-000776-PA (247-18-000241-A, 247-18-
000247-A)
APPLICANT/ Tumalo Irrigation District (“TID”)
OWNER: c/o Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
APPLICANT’S Garrett Chrostek
ATTORNEY: Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
APPELLANTS: Tumalo Irrigation District
c/o Bryant, Lovlien & Jarvis, P.C.
591 SW Mill View Way
Bend, Oregon 97702
Central Oregon LandWatch (“LandWatch”)
50 SW Bond Street, Suite 4
Bend, Oregon 97702
PROPOSAL: The applicant requests a Comprehensive Plan Amendment to
change the designation of the subject property from Surface Mine
to Rural Residential Exception Area, and a Zone Change from
Surface Mining to Multiple Use Agricultural.
The request includes removing Surface Mining Site No. 357 from the
County’s Surface Mining Mineral and Aggregate Inventory, adding Site
No. 357 to the Non-Significant Mining and Aggregate Inventory, and
removing the associated Surface Mining Impact Area Combining Zone.
STAFF REVIEWER: Cynthia Smidt, Associate Planner
HEARINGS OFFICER: Dan R. Olsen
HEARINGS OFFICER
DECISION ISSUED: February 22, 2018, Mailed February 23, 2018
EXHIBIT 7
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EXHIBIT “G” TO ORDINANCE 2019-002 Page 5
made to address drainage issues. The property owner/applicant contributed financially
to these efforts. There is no evidence in the record suggesting that repairs were
insufficient or otherwise not to County standards.2
Staff indicated that (a) there are no known safety issues associated with Bill Martin Road,
(b) Bill Martin Road experiences extremely low traffic volumes as it serves only a few
properties, and (c) Bill Martin Road has sufficient capacity to handle the theoretical worst-
case scenario under the Multiple Use Agricultural (“MUA-10”) Zone. Even though no
specific development is proposed, the record indicates that transportation facilities are
presently provided.
Accordingly, neither staff nor TID’s transportation engineer identified any impacts in need
of mitigation nor any undue impact on other users of Bill Martin Road. The opponents
did not supply any counter evidence from professionals in transportation planning or
road design. To the extent the opponents presented conflicting evidence that constitutes
substantial evidence, not mere speculation, the Board finds that testimony of staff and
TID’s transportation engineer is more persuasive.
The Board further notes that Bill Martin Road is not the only road serving the subject
property. The property also fronts both Mock Road and Tumalo Reservoir Road. There
are no identified issues with the ability of these roads to serve the subject property.
The subject property is presently served with facilities sufficient to serve reasonably
anticipated development and there are no apparent obstacles to providing additional
facilities should they be warranted to serve specific development. Consequently, there
are no undue impacts on adjacent properties/other road users or disharmony with any
Comprehensive Plan policies. This criterion is satisfied.
Title 22, Deschutes County Development Procedures Ordinance
Chapter 22.20 Review of Land Use Action Applications
1. Section 22.20.015 Code Enforcement and Land Use
A. Except as described in (D) below, if any property is in violation of
applicable land use regulations and/or conditions of approval of any
previous land use decisions or building permits previously issued by the
County, the County shall not:
1. Approve any application for land use development;
2 Opponents only point to issues prior to the repairs. While there is suggestion the underlying issues still
exist, there is no evidence to contradict County staff testimony that the repairs were sufficient.
EXHIBIT 7
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EXHIBIT “G” TO ORDINANCE 2019-002 Page 6
2. Make any other land use decision, including land divisions and/or
property line adjustments;
3. Issue a building permit.
B. As part of the application process, the applicant shall certify:
1. That to the best of the applicant’s knowledge, the property in
question, including any prior development phases of the property,
is currently in compliance with both the Deschutes County Code
and any prior land use approvals for the development of the
property; or
2. That the application is for the purposes of brining the property into
compliance with the Deschutes County land use regulations and/or
prior land use approvals.
C. A violation means the property has been determined to not be in
compliance either through a prior decision by the County or other tribunal,
or through the review process of the current application, or through an
acknowledgement by the alleged violator in a signed voluntary
compliance agreement (“VCA”).
D. A permit or other approval, including building permit applications, may be
authorized if:
1. It results in the property coming into full compliance with all
applicable provisions of the federal, state, or local laws, and
Deschutes County Code, including sequencing of permits or other
approvals as part of a voluntary compliance agreement;
2. It is necessary to protect the public health or safety;
3. It is for work related to and within a valid easement over, on, or
under the affected property; or
4. It is for emergency repairs to make a structure habitable or a road
or bridge to bear traffic.
E. Public Health and Safety.
1. For the purposes of this section, public health and safety means the
actions authorized by the permit would cause abatement of
conditions found to exist on the property that endanger life, health,
personal property, or safety of the residents of the property or the
public.
2. Examples of that situation include, but are not limited to issuance
of permits to replace faulty electrical wiring, repair or install
furnace equipment; roof repairs; replace or repair compromised
utility infrastructure for water, sewer, fuel or power; and actions
necessary to stop earth slope failure.
FINDING: The Board adopts the findings of the Hearings Officer with respect to this
finding, but provides supplemental interpretation and findings as follows.
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Implementation of the provision:
As DCC 22.20.015 is a relatively new provision first adopted in 2015 and frequently arises
in contested land use hearings, the Board takes this opportunity to provide interpretation
and guidance on the implementation of this provision.
As discussed more fully below, the Board interprets DCC 22.20.015 to require a sequential
three-step analysis.
1. Is there a previously “adjudicated violation” on the property?
2. Does the subject land use application present the best forum for adjudicating a
new allegation, i.e. is there time to investigate something more than a vague
allegation?
3. When there is an “adjudicated violation” or the property is found to be in violation
as part of the land use application process, can the land use permit nevertheless
be issued pursuant to DCC 22.20.015(D) and (E)?
First, the Board starts by noting that the primary purpose (and benefit) of DCC 22.20.015
is to address “adjudicated violations,” i.e. violations that were already conclusively
determined through the normal applicable code enforcement process prior to an
applicant submitting a land use application. This interpretation is supported by the use
of the past tense in the codified definition of “violation” in DCC 22.20.015(C): “[a] violation
means the property has been determined to not be in compliance either through a prior
decision by the County or other tribunal, … or through an acknowledgment by the alleged
violator in a signed voluntary compliance agreement (‘VCA’)” (emphasis added).
Second, differing from the “adjudicated violations” scenario described above, there are
cases where the Board anticipates that a County hearings body will need to determine if
a property is in violation during the land use application process. DCC 22.20.015(C)
addresses this possibility by including in the definition of “violation” the phrase “or
through the review process of the current application.” However, the Board cautions that
County hearings bodies should take up this inquiry in rare cases because of the obvious
practical difficulties born from comingling the County’s land use application process with
the separate and distinct code enforcement process. For example, when a vague
allegation is alleged by an opponent late in the land use application process, there rarely
will be time to comprehensively investigate and appropriately adjudicate that violation
due to the 150-day time limit for issuing final decisions per ORS 215.427. Nothing within
DCC 22.20.015 requires a County hearings body to process a code complaint pursuant to
the County’s adopted Code Enforcement Policy and Procedures Manual and conclusively
determine the status of a previously un-adjudicated violation solely on the basis that an
opponent submits a vague and unsubstantiated allegation during the land use application
process.
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As such, the Board interprets DCC 22.20.015 to require something more than a vague
allegation (i.e., clear evidence of a violation) to compel the County hearings body to
determine if a property is in violation and the pending land use application process is the
appropriate forum in which to determine whether a violation exists. As discussed below,
this case does not provide a sufficient basis for determining what more is needed and the
Board thereby will wait for a subsequent case to establish a bright-line rule. Further, prior
to electing to adjudicate an allegation as part of the land use application process, the
Board interprets DCC 22.20.015 as necessitating the County hearings body to likewise
consider procedural, equitable, and legal issues, including but not limited to the time it
will take to conduct an investigation pursuant to the Code Enforcement Policy and
Procedures Manual, the severity of the alleged violation (i.e., clear cutting vegetation in a
wetland is severe while minimal solid waste that is not creating a public health hazard is
not), and the 150-day land use decision making clock.
Third, the Board takes this opportunity to reiterate what is self-evident in DCC 22.20.015.
A County hearings body’s inquiry is not completed by simply noting a past “adjudicated
violation” or finding that a property is in violation. DCC 22.20.015(D) and (E) compel a
subsequent analysis to determine, for example, if the permit “protect[s] the public health
and safety” or “results in the property coming into full compliance.” Further, the final
phrase of DCC 22.20.015(D)(1) notes that “coming into fully compliance” also “include[s]
sequencing of permits or other approvals as part of a voluntary compliance agreement.”
The Board thereby interprets that aforementioned language to specifically allow a County
hearings body to approve a land use permit conditioned on the applicant subsequently
executing and complying with a voluntary compliance agreement even for an unrelated
violation on the same property.
Scope of the provision:
A related issue is the appropriate scope of DCC 22.20.015. Subsection (A) provides that
“violation[s] of applicable land use regulations and/or the conditions of approval of any
previous land use decisions or building permits previously issued by the county” preclude
further approvals for “land use development”, “land use decisions” or building permits
(emphasis added). Opponents to land use applications have asserted all manner of
alleged violations in contested land use decisions. For example, opponents have alleged
that violations under various state and federal statutes and regulations concerning public
health or regulated industries implicate DCC 22.20.015.
“Land use regulations” is not defined in the Deschutes County Code, but is defined under
ORS 197.015(11) as follows:
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“Land use regulation” means any local government zoning ordinance, land
division ordinance adopted under ORS 92.044 or 92.046 or similar general
ordinance establishing standards for implementing a comprehensive plan.
The Board adopts the statutory definition of “land use regulation.” This definition is
appropriate because the County only has jurisdiction, competency, and resources to
evaluate its local enactments governing land use. If the County desires to enforce a
provision of state or federal law under DCC 22.20.015, then it is incumbent on the County
to incorporate such provision of law into its land use regulations, or into a prior land use
permit condition of approval applicable to a specific development.
The Board notes that there is a reference to state and federal laws in DCC 22.20.015(D)(1).
However, that reference to state and federal laws is for a different purpose and does not
alter the aforementioned interpretation of DCC 22.20.015(A) incorporating the statutory
definition of “land use regulation.” The reference in DCC 22.20.015(D) ensures that the
County may authorize land use or building permits even when violations exist on a
property to address issues that may arise now or in the future from state or federal laws
such as the Americans with Disabilities Act, Endangered Species Act, etc. The same reference
to state and federal laws is purposely omitted from DCC 22.20.015(A) because the County
does not intend to be the adjudicator of alleged violations of state and federal law through
our local land use application process.
Application of the provision in this case:
With the foregoing as background, the Board finds that none of the claims made by
opponents as to violations of various state laws regarding roads and drainage are subject
to review in the present proceedings. With regard to the three-step analysis set forth
above, nothing in the record suggests that there are “adjudicated violations” on the
property (step 1). Nor have the opponents raised anything other than “vague allegations”
(step 2). In addition to the alleged violations concerning the Bill Martin Road lawsuit
discussed above, a code complaint was filed on April 24, 2018 alleging various additional
violations. In this particular case, however, it appears that there was sufficient time to
investigate those additional allegations. The complaint itself does not appear in the
record but is alluded to by opponents of the application. To the extent the complaint is
properly before the Board, after conducting an investigation, County staff informed the
Board that the case was closed on August 8, 2018.
With regard to Bill Martin Road, the record shows that repairs were made such that
drainage issues have been resolved. As stated above, there is no evidence in the record
disputing testimony from County staff that the repairs were sufficient and in accordance
with County standards. When the County accepted dedication of Bill Martin Road for
public use, it determined that the road had been constructed to County standards.
County Code Section 17.52.100 only requires Local Access Roads such as Bill Martin Road
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to be constructed to County Standards and specifies that the County is not responsible
for maintenance. It does not assign maintenance responsibility to any particular party
and does not specify any type of violation for alleged maintenance failures. Even if it did,
the record shows that repairs were made to Bill Martin Road. The record does not show
that Bill Martin Road is presently known to not comply with any County standards.
The Hearings Officer correctly determined that DCC 17.16.105 is only applicable to a
proposal for a subdivision. This provision was found not applicable in prior land use
decisions that have long become final. The Board rejects the theories on subdivision
versus partition raised by the opponents on the merits and further notes that raising this
issue now constitutes a collateral attack on those prior land use decisions.
Thereby, the Board finds that both the additional allegations levied in April as well as the
Bill Martin Road allegations are unsubstantiated “vague allegations” that require no
further review or action from this Board. The Board thereby ends its inquiry pursuant to
DCC 22.20.015 at step 2 as described above.
Deschutes County Comprehensive Plan
2. Section 3.3 Rural Housing
LandWatch argues that lands can only be designated as Rural Residential Exception Areas
if an exception is taken. The Board has addressed this issue before, but desires to provide
further clarification.
LandWatch’s argument is essentially two-fold. First, LandWatch cites the following
language from Section 3.3:
As of 2010 any new Rural Residential Exception Areas need to be justified
through initiating a nonresource plan amendment and zone change by
demonstrating the property does not meet the definition of agricultural or forest
land, or taking exceptions to farm, forest, public facilities and services and
urbanization regulations, and follow guidelines set out in the OAR.
According to LandWatch, the applicant must either submit evidence contradicting the
Natural Resource and Conservation Service (NRCS) data that indicates the subject
property constitutes “agricultural land,” or take an exception.
The applicant in this case is pursuing the first option identified in the quoted language of
initiating a non-resource plan amendment and zone change. As explained in detail below,
the County already reviewed whether the property meets the definition of agricultural or
forest lands. The subject property was excluded from agricultural land inventories
performed by the County, which were incorporated into the Comprehensive Plan and
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