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Home My WebLink About2021-10-05 C Macbeth (COLW) - Letter re Record Extension pt 21 Kyle Collins From:Carol Macbeth <carol@colw.org> Sent:Wednesday, October 6, 2021 10:22 AM To:Kyle Collins Cc:Liz Fancher Subject:Re: Record for 247-21-000616-PA Swisher PA & ZC [EXTERNAL EMAIL] Kyle, Thanks for letting us know and thanks again for all your help, Carol Le mer. 6 oct. 2021 à 10:15, Kyle Collins <Kyle.Collins@deschutes.org> a écrit : Liz and Carol, Please note that the attached order from the Hearings Officer was mailed out this morning to all relevant parties. Take notice of the slightly altered mailing dates and submittal deadlines from the draft order that was provided yesterday evening. These changes were made to account for the delay in mailing and to provide adequate review time. Please let me know if you have any questions or concerns. Regards, Kyle Collins | Associate Planner DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue | Bend, Oregon 97703 PO Box 6005 | Bend, Oregon 97708 Tel: (541) 383‐4427 | www.deschutes.org/cd Let us know how we’re doing: Customer Feedback Survey Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. 2 From: Liz Fancher <liz@lizfancher.com> Sent: Wednesday, October 6, 2021 8:51 AM To: Kyle Collins <Kyle.Collins@deschutes.org>; Carol Macbeth <carol@colw.org> Subject: RE: Record for 247‐21‐000616‐PA Swisher PA & ZC [EXTERNAL EMAIL] Kyle: Thank you for providing me with an opportunity to review the order. I have no objection and thank you and Hearings Officer Marshall for your prompt response to this issue. Liz Fancher Liz Fancher, Attorney 2465 NW Sacagawea Ln Bend, OR 97703 541‐385‐3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. From: Kyle Collins <Kyle.Collins@deschutes.org> Sent: Tuesday, October 5, 2021 4:48 PM To: Carol Macbeth <carol@colw.org>; Liz Fancher <liz@lizfancher.com> Subject: RE: Record for 247‐21‐000616‐PA Swisher PA & ZC Importance: High Liz and Carol, 3 The Hearings Officer has agreed to extend the record period for rebuttal evidence as presented in the attached draft order. The order would allow 7 additional days for rebuttal testimony in regards to the September 28 submission by Central Oregon LandWatch, and still allow the Applicant seven days for any final argument. Please let me know as soon as possible if you are both amenable to this solution to the record issues, and this document will be mailed to all relevant parties. Please let me know if you have any questions. Regards, Kyle Collins | Associate Planner DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue | Bend, Oregon 97703 PO Box 6005 | Bend, Oregon 97708 Tel: (541) 383‐4427 | www.deschutes.org/cd Let us know how we’re doing: Customer Feedback Survey Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Carol Macbeth <carol@colw.org> Sent: Tuesday, October 5, 2021 3:01 PM To: Kyle Collins <Kyle.Collins@deschutes.org> Subject: Fwd: Record for 247‐21‐000616‐PA Swisher PA & ZC [EXTERNAL EMAIL] Please forward to Hearings Officer Marshal at your earliest convenience. Thanks! 4 Carol ---------- Forwarded message --------- De : Carol Macbeth <carol@colw.org> Date: mar. 5 oct. 2021 à 14:54 Subject: Re: Record for 247-21-000616-PA Swisher PA & ZC To: Liz Fancher <liz@lizfancher.com> Cc: Kyle Collins <Kyle.Collins@deschutes.org> Kyle, DCC 22.24.140 is attached. Section D provides: "If at the conclusion of the initial hearing the Hearings Body leaves the record open for additional written evidence or testimony, the record shall be left open for at least 14 additional days, allowing at least the first seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony." Our September 28, 2021 comments were submitted during the open record period in precise accordance with Hearings Officer Marshall's instructions, and are open record period submissions. Please find attached for your convenience LandWatch comments dated today, October 5, 2021. These comments, as indeed all of our comments, are in conformance with DCC 22.24.140. They are "evidence or testimony that rebuts previously submitted evidence or testimony." DCC 22.24.140(D). LandWatch's previous comments additionally qualify as testimony that may be submitted today, October 5, 2021. The September 28, 2021 and today's submissions are both in precise accordance with Hearings Officer Marshall's submission procedure. Our comments cannot be disqualified because they are too responsive. 5 The staff person who accepted our September 28, 2021 comments accepted them with our instruction to give them to you, which they agreed to do. If they did not, that was not within LandWatch's control. Please include the attached in the record for this proceeding. Please include this correspondence in the record for this proceeding. Best regards, Carol Macbeth Le mar. 5 oct. 2021 à 13:51, Liz Fancher <liz@lizfancher.com> a écrit : Dear Carol and Kyle: As I understand Ms. Macbeth’s e-mail and letter, read together, COLW is willing to agree that the applicant be allowed a period of seven days from today to respond to materials it misidentified and filed in the record of the wrong land use application on September 28, 2021 if its materials are included in the record of the Swisher applications. I note, however, that Ms. Macbeth is also arguing that the September 28, 2021 and its attachments are appropriately filed as rebuttal. The materials do not, however, rebut any of the materials filed by any party during the post-hearing comment period. According to DCC 22.24.140.D., “Leaving record open. If at the conclusion of the initial hearing the Hearings Body leaves the record open for additional written evidence or testimony, the record shall be left open for at least 14 additional days, allowing at least the first seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony.” 6 The “previously submitted evidence or testimony” that may be rebutted by COLW is evidence or testimony submitted during the prior, first post-hearing open record period. This is made clear by the fact that the second seven-day period is provided to respond to evidence received while the record was held open after the hearing. COLW has filed the applicant’s post-hearing comments but has not explained why what it attempted to file as post-hearing comments in any way rebuts what the applicant’s submittals. In fact, the letter makes claims about hearings testimony – something off limits during rebuttal. If the hearings officer does not agree to allow the applicant to respond to the recently filed COLW documents, the applicant requests they not be accepted as rebuttal evidence or as timely filed post-hearing evidence. Please include this e-mail in the record of the above-referenced Swisher applications. Thank you, Liz Fancher Liz Fancher, Attorney 2465 NW Sacagawea Ln Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. From: Carol Macbeth <carol@colw.org> Sent: Tuesday, October 5, 2021 1:20 PM To: Kyle Collins <Kyle.Collins@deschutes.org> Cc: Liz Fancher <liz@lizfancher.com> Subject: Re: Record for 247-21-000616-PA Swisher PA & ZC Kyle, Please add this correspondence to the file as well. I attach our comments as received by the County on September 28, 2021, and the corrected cover page. 7 Materials were received by the County within the Open Record period I submitted these on September 28, 2021, within the Open Record period, to the staff person at the County planning desk, and in response to a question from that person said the materials were to be given to Kyle Collins. The person responded that you had said to be on the lookout for them. I also told the person accepting them to tell you that it is very important that all the color photographs be transmitted to the Hearings Officer in color. Whatever the subject line says, there are 70 pages of comments that I delivered to Kyle Collins at his offices on September 28, 2021, to the person designated to accept them. LandWatch filed the comments in strict accordance with Hearings Officer Marshall's submission procedure for the seven day open record period. Materials were received by the County within the Rebuttal Period Moreover, though these materials were submitted in accordance with the procedure for the open record period, the materials themselves respond to and rebut materials submitted prior to the close of the open record period. They may therefore be equally included as either rebuttal materials, or open record materials. In either case, there is no legal basis for a conclusion that they ought not to be in the record. They are wholly responsive in nature. They respond to the application itself and to statements made in the hearing, and to nothing else. They have now been submitted not once, but twice: once within the open record period, and once within the rebuttal period. LandWatch has no objection if the Hearings Officer wishes to provide the applicant more time to respond. I attach a letter so stating. Best regards, Carol Macbeth Le mar. 5 oct. 2021 à 10:40, Liz Fancher <liz@lizfancher.com> a écrit : Kyle: Given the fact that today is the deadline for me to file rebuttal to these materials Ms. Macbeth just properly filed with the County, I must object to inclusion of them in the record of the Swisher matter at this time. The date-stamped letter Ms. Macbeth filed on September 28, 2021 shows that Ms. Macbeth’s claim that the County misfiled the letter is erroneous. The County correctly filed the document in the file she indicated in her September 28, 2021 letter. The heading of the letter says “re: File No. 247-21-000666-CU; request to establish a personal use airstrip in the EFU-TRB zone.” 8 The documents filed on September 28, 2021, attached, provide the County with any identifying information that would link it to the Swisher file. The materials do not contain any of the following information that might identify it as such: 1. Correct case file number 2. Correct description of application as a plan amendment and zone change application 3. The name of the applicant or property owner 4. The name of the applicant’s attorney 5. The name of the hearings officer considering the application 6. The name of the staff planner assigned to review the land use application The late filing of these materials has prejudiced the applicant because there is insufficient time for the applicant to prepare a response to the new facts contained in the large stack of documents belatedly filed by Ms. Macbeth. Furthermore, Ms. Macbeth chose not to send a copy of her request to me – further reducing the amount of time provided for rebuttal. This matter will be heard by the Board of Commissioners at which time Ms. Macbeth can file this information. Receiving it now will only handicap the applicant in making its case to the hearings officer. Please include my response in the record of 247-21-000616-PA and -000617-ZC and include a copy of it to Hearings Officer Marshall to address in her decision. Thank you, Liz Fancher Liz Fancher, Attorney 2465 NW Sacagawea Ln Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. 9 From: Kyle Collins <Kyle.Collins@deschutes.org> Sent: Tuesday, October 5, 2021 9:58 AM To: Liz Fancher <liz@lizfancher.com> Subject: RE: Record for 247-21-000616-PA Swisher PA & ZC Liz, Apologies for the 11th hour response here, but it looks like there was a mix up with the first open record period comments. Carol Macbeth of Central Oregon LandWatch did in fact submit a much larger series of comments on September 28 as a hard copy to our office. Unfortunately, those comments included an incorrect file number and description in the heading, and thus I did not receive a copy of those items until this morning. We are in the process of correcting the erroneous file numbers in our records, but I wanted to be sure to pass along what was originally filed by Carol on September 28. The attached document contains both the original submittal, a corrected submittal with updated file numbers/project description, and an email from Carol describing what transpired. Please let me know if you have any questions or concerns at this time. Regards, Kyle Collins | Associate Planner DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue | Bend, Oregon 97703 PO Box 6005 | Bend, Oregon 97708 Tel: (541) 383-4427 | www.deschutes.org/cd Let us know how we’re doing: Customer Feedback Survey Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. 10 From: Liz Fancher <liz@lizfancher.com> Sent: Thursday, September 30, 2021 5:15 PM To: Kyle Collins <Kyle.Collins@deschutes.org> Subject: RE: Record for 247-21-000616-PA Swisher PA & ZC [EXTERNAL EMAIL] Kyle: Thank you so much. I greatly appreciate your help in avoiding legal malpractice! Liz Fancher Liz Fancher, Attorney 2465 NW Sacagawea Ln Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. From: Kyle Collins <Kyle.Collins@deschutes.org> Sent: Thursday, September 30, 2021 4:59 PM To: Liz Fancher <liz@lizfancher.com> Subject: RE: Record for 247-21-000616-PA Swisher PA & ZC Liz, 11 No additional comments or materials were submitted beyond those items provided to you earlier this week. Should any items that come in during the rebuttal period not be uploaded by next Tuesday (10/5), I can certainly pass them along to you via email. Please let me know if you have any additional questions or concerns. Regards, Kyle Collins | Associate Planner DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue | Bend, Oregon 97703 PO Box 6005 | Bend, Oregon 97708 Tel: (541) 383-4427 | www.deschutes.org/cd Let us know how we’re doing: Customer Feedback Survey Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Liz Fancher <liz@lizfancher.com> Sent: Thursday, September 30, 2021 4:57 PM To: Kyle Collins <Kyle.Collins@deschutes.org> Subject: Record for 247-21-000616-PA Swisher PA & ZC [EXTERNAL EMAIL] Kyle: I am writing to confirm that no additional documents beyond those attached (the ones you sent me on Tuesday) were filed in the record prior to the close of the open record period by any party, including Carol Macbeth of COLW. None of these documents and earlier documents I filed have yet been uploaded. As a result, I am wondering whether you would be willing to send me copies of documents filed during the rebuttal period on Wednesday after the record closes. 12 Thank you! Liz Fancher Liz Fancher, Attorney 2465 NW Sacagawea Ln Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. From: Kyle Collins <Kyle.Collins@deschutes.org> Sent: Tuesday, September 28, 2021 1:40 PM To: Liz Fancher <liz@lizfancher.com> Cc: Dave Swisher <dave@daveswisher.com> Subject: RE: Record for 247-21-000616-PA Swisher PA & ZC Liz, Apologies for the delay in document uploads. Our administrative assistant is quite busy and I cannot guarantee exactly when those documents will appear on Accela/Dial. For your convenience, I have attached all the documents received by our office prior to the hearing, the day of the land use hearing, and up until today. This does not include the comments from public agencies, as those comments are quoted in full within my staff report for reference, and I believe they are available via Accela/Dial as well. If any additional materials come through before the 5PM open record period deadline, I will pass along those items as well. 13 Please let me know if you need anything else. Regards, Kyle Collins | Associate Planner DESCHUTES COUNTY COMMUNITY DEVELOPMENT 117 NW Lafayette Avenue | Bend, Oregon 97703 PO Box 6005 | Bend, Oregon 97708 Tel: (541) 383-4427 | www.deschutes.org/cd Let us know how we’re doing: Customer Feedback Survey Disclaimer: Please note that the information in this email is an informal statement made in accordance with DCC 22.20.005 and shall not be deemed to constitute final County action effecting a change in the status of a person's property or conferring any rights, including any reliance rights, on any person. From: Liz Fancher <liz@lizfancher.com> Sent: Tuesday, September 28, 2021 1:32 PM To: Kyle Collins <Kyle.Collins@deschutes.org> Cc: Dave Swisher <dave@daveswisher.com> Subject: Record for 247-21-000616-PA Swisher PA & ZC [EXTERNAL EMAIL] Kyle: Documents filed prior to and the day of the land use hearing a week ago are still not posted on DIAL for the Swisher PA & ZC case. You indicated that you would be willing to send documents via e-mail if this was still the case today. Would you please do so tomorrow for those documents and all documents filed during the post-hearing comment period? If that is not possible, would you please let me know when all documents filed through the close of business today will be available for in-person review at the County. I’ve been told that when the file gets sent scanning, it is not available for public review and that it may not be complete (missing e-mails sent to the assigned planner). 14 Thank you, Liz Fancher Liz Fancher, Attorney 2465 NW Sacagawea Ln Bend, OR 97703 541-385-3067 (telephone) CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)), copying or taking of any action because of this information is strictly prohibited. -- Carol Macbeth Staff Attorney Central Oregon LandWatch -- Carol Macbeth Staff Attorney 15 Central Oregon LandWatch -- Carol Macbeth Staff Attorney Central Oregon LandWatch -- Carol Macbeth Staff Attorney Central Oregon LandWatch