HomeMy WebLinkAbout2022-01-12 Board Memo Whether to Hear 1116-A, 920-A, 553-MC w draft orders
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COMMUNITY DEVELOPMENT
MEMORANDUM
TO: Board of County Commissioners
FROM: Angie Brewer, Senior Planner
DATE: January 5, 2022 for January 12, 2022 Board Session
RE: Board Order 2022-003
Decision whether to hear an appeal of Hearings Officer’s approval of an application
to amend Conceptual Master Plan/Final Master Plan (CMP/FMP) for Thornburgh
Destination Resort to conform to State and County Destination Resort rules regarding
Overnight Lodging Units to State and County Destination Resort rules.
File No. 247-21-001116-A
On January 12, 2022, the Board of County Commissioners (Board) will consider whether to hear
Appeal No. 247-21-001116-A of Hearings Officer decision 247-21-000920-A (appeal of Staff Decision
247-21-000553-MC). The Hearings Officer decision addresses a limited scope of issues on appeal
and approves the request.
I. BACKGROUND
The Thornburgh Destination Resort Master Plan/Conceptual Master Plan was previously approved
in File No. M-07/MA-08-6. The applicant has subsequently pursued required land use approvals for
specific Site Plan reviews and Tentative Plan reviews to implement the Master Plan in phases.
The subject appeal is in response to amend the previously approved Conceptual Master Plan/Final
Master Plan (CMP/FMP) for Thornburgh Destination Resort to conform to State and County
Destination Resort rules regarding Overnight Lodging Units to State and County Destination Resort
rules. Changes to law include changes to the ratio of overnight lodging units to single-family
dwellings and the number of weeks each year an OLU must be available for overnight lodging.
Staff received Application 247-21-000553-MC on June 3, 2021; Staff issued an administrative
decision on September 30, 2021, approving the proposed development with conditions. Appeal 920-
A, filed by Annunziata Gould was received October 12, 2021. A hearing before the Deschutes County
Hearings Officer Gregory Frank was held November 4, 2021. The Hearings Officer Decision was
247-21-001116-A, 247-21-000920-A, and 247-21-000553-MC Page 2 of 5
issued December 21, 2021, responding to the grounds for appeal, modifying the staff report, and
approving the proposed amendment. An appeal of the Hearings Officer decision was received
December 30, 2021 by Annunziata Gould. The 150th day by which a final local decision must be
issued is February 12, 2022. Staff notes Board hearings for land use appeals require 20-day public
notice and have a 12-day appeal period.
II. HEARINGS OFFICER DECISION
A public hearing was held November 4, 2021; additional argument and evidence was provided
during the open record period.
The Hearings Officer remand decision concludes the following:
1. Appellant’s appeal of the Staff Decision is denied.
2. The Staff Findings and Decision (247-21-000553-MC) is affirmed excepting Conditions D, E, and
F which are modified to read as follows:
A. Staff Decision Condition D - 21a is revised to read as follows (sections in italics
represent newly revised language):
The resort shall comply with DCC 18.113.060(D)(2). Specifically, DCC 18.113.060(D)(2)
requires:
Individually owned residential units that do not meet the definition of overnight lodging
in DCC 18.04.030 shall not exceed two and one-half such units for each unit of visitor
oriented overnight lodging. Individually owned units shall be considered visitor
oriented overnight lodging if they are available for overnight rental use by the general
public for 23 at least 38 weeks per calendar year through one or more central
reservation and check in service(s) operated by the destination resort or by a real estate
property manager, as defined in ORS 696.010.
B. Staff Decision Condition D – 21b is deleted.
C. Staff Decision Condition D – 21c is retained.
D. Staff Decision Condition D – 21d is deleted.
E. Staff Decision Condition E is deleted.
F. Condition 33 is retained and revised to read as follows (sections in italics represent
newly revised language):
The Resort shall, in the first phase, provide for the following:
A. At least 150 separate rentable units for visitor-oriented lodging as follows:
(a) The first 50 overnight lodging units must be constructed prior to the closure
of sales, rental or lease of any residential dwellings or lots.
247-21-001116-A, 247-21-000920-A, and 247-21-000553-MC Page 3 of 5
(b) The resort may elect to phase in the remaining 100 overnight lodging units
as follows:
(i) At least 50 of the remaining 100 required overnight lodging units shall
be constructed or guaranteed through surety bonding or equivalent
financial assurance within five years of the closure of sale of individual
lots or units, and
(ii) The remaining 50 required overnight lodging units shall be constructed
or guaranteed through surety bonding or equivalent financial
assurances within 10 years of the closure of sale of individual lots or
units.
(iii) If the developer of a resort guarantees a portion of the required
overnight lodging units required under subsection 18.113.060(A) (1)(b)
through surety bonding or other equivalent financial assurance, the
overnight lodging units must be constructed within 4 years of the date
of execution of the surety bond or other equivalent financial assurance.
(iv) The 2.5:1 accommodation ratio required by DCC 18.113.060 (D)(2) must
be maintained at all times.
(c) If a resort does not choose to phase the overnight lodging units as
described in this condition of approval, then the required 150 units of
overnight lodging units must be constructed prior to the closure of sales,
rental or lease of any residential dwellings or lots.
B. Visitor-oriented eating establishments for at least 100 persons and meeting
room which provide eating for at least 100 persons.
C. The aggregate cost of developing the overnight lodging facilities and the eating
establishments and meeting rooms required in DCC 18.113.060(A)(1) and (2)
shall be at least $2,000,000 (in 1984 dollars).
D. At least $2,000,000 (in 1984 dollars) shall be spent on developed recreational
facilities.
E. The facilities and accommodations required by DCC 18.113.060, other than
overnight lodging units, must be physically provided or financially assured
pursuant to DCC 18.113.110 prior to the closure of sales, rental or lease of any
residential dwellings or lots.
G. Staff Decision Condition F is deleted and Condition 35 is retained and revised to read
as follows (sections in italics represent newly revised language):
The contract with the owners of units that will be used for overnight lodging by the
general public shall contain language to the following effect: “[Unit Owner] shall make
the unit available to [Thornburgh Resort/booking agent] for overnight rental use by the
general public at least 38 weeks per calendar year through a central reservation and
check-in service.
247-21-001116-A, 247-21-000920-A, and 247-21-000553-MC Page 4 of 5
III. APPEAL
The appellant, Annunziata Gould provided a statement of reasons for the appeal, summarized here:
1. Goal Post Rule;
2. Raise or Waive It;
3. Lot of Record Issue;
4. Substantial Change (Final Master Plan Condition 1);
5. Judge Lipscomb’s Arguments;
6. Conditions of Approval;
7. Conclusions and Decision.
The appellant requests the Board hear this matter to review and reverse the Hearings Officer
remand decision. The appellant requests a de novo hearing before the Board.
IV. BOARD OPTIONS
There are two versions of Order No. 2022-003 attached to this memo, one to hear the appeal and
one to decline to hear the appeal. In determining whether to hear an appeal, the Board may
consider only:
1. The record developed before the Hearings Officer;
2. The notice of appeal; and
3. Recommendation of staff1
In addition, if the Board decides to hear the appeal, it may consider providing time limits for public
testimony.
Reasons not to hear:
• The Hearings Officer’s decision is reasoned, well written, and could be supported, as the
record exists today on appeal to LUBA.
• Statutory remand timelines require a final local decision by February 12, 2022; insufficient
time exists for the Board to hear, deliberate, and decide upon the matter.
• The applicant agrees with the Hearings Officer’s decision and thus requests that the Board
not hear the appeal.
Reasons to hear:
• The Board may want to take testimony and make interpretations relating to the Hearings
Officer’s decision.
1 Deschutes County Code (DCC) 22.32.035(B) and (D)
247-21-001116-A, 247-21-000920-A, and 247-21-000553-MC Page 5 of 5
• The appellant recommends the Board hear this matter.
If the Board chooses to hear this matter, the appellant requests the hearing be heard de novo. The
applicant has not stated whether they would like the hearing before the Board be heard de novo,
limited de novo, or on the record. Under DCC 22.32.027(B)(3) the Board may choose to hear a matter
de novo at their sole discretion.
If the Board decides that the Hearings Officer’s remand decision shall be the final decision of the
county, then the Board shall not hear the appeal and the party appealing may continue the appeal
as provided by law. The decision on the land use applications becomes final upon the mailing of the
Board’s decision to decline review.
V. STAFF RECOMMENDATION
Staff recommends the Board not hear this appeal because staff believes that the appellants were
able to present all relevant evidence at the hearing before the Hearings Officer. Staff agrees with
the Hearings Officer’s analysis and decision. Staff also notes that there is not adequate time in the
150-day remand review clock.
VI. 150-DAY LAND USE CLOCK
The County must take final action on this application by February 12, 2022.
VII. RECORD
The record for appeal File 247-21-00116-A (247-21-000920-A and 247-21-000553-MC) is as
presented at the following Deschutes County Community Development Department website:
https://www.deschutes.org/cd/page/247-21-001116-appeal-hearings-officer-decision-247-21-
000920-247-21-000553-mc
Attachments:
Document Item No.
Order No 2022-003_Accept_1116-A 1
Order No 2022-003_Decline_1116-A
2
ORDER NO. 2022-003
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings
Officer’s Decision in File Nos. 247-21-
001116-A, 247-21-000920-A, and 247-21-
000553-MC
*
*
ORDER NO. 2022-003
WHEREAS on June 3, 2021, Central Land and Cattle Co., LLC initiated 247-21-000553-MC
with a new land use application; and
WHEREAS, on September 30, 2021, an administrative decision was issued by Deschutes
County Community Development Department approving the proposed development with
conditions; and
WHEREAS, on October 12, 2021, appeal 247-21-000920-A was submitted by Annunziata
Gould, represented by Jeffrey Kleinman; and
WHEREAS, on November 4, 2021, a public hearing was held at 6:00pm in the Barnes and
Sawyer Meeting Room and by Zoom for the Deschutes County Hearings Officer review of 247-21-
000553-MC and 247-21-000920-A; and
WHEREAS, on December 21, 2021, the Deschutes County Hearings Officer approved
Application No. 247-21-000553-MC; and
WHEREAS, on December 30, 2021, Annuziata Gould, the Appellant, appealed (File No. 247-
21-001116-A) the Deschutes County Hearings Officer’s Decision on Files 247-21-000920-A and 247-
21-000553-MC; and
WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code (“DCC”) allow
the Deschutes County Board of County Commissioners (“Board”) discretion on whether to hear
appeals of Hearings Officers’ decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application
on appeal; now, therefore,
REVIEWED
______________
LEGAL COUNSEL
ORDER NO. 2022-003
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will hear on appeal application 247-21-001116-A, 247-21-000920-A,
247-21-000553-MC pursuant to Title 22 of the DCC and other applicable provisions of the County
land use ordinances.
Section 2. The appeal shall be heard de novo.
Section 3. Staff shall set a hearing date and cause notice to be given to all persons or
parties entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030.
Section 4. Pursuant to Section 22.32.024, the Board waives the requirement that the
appellants provide a complete transcript for the appeal hearing.
Section 5. Pursuant to DCC 22.32.035(D), the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
developed before the lower hearing body for file nos. 247-21-001116-A, 920-A, 553-MC as
presented at the following website:
https://www.deschutes.org/cd/page/247-21-001116-appeal-hearings-officer-decision-247-21-
000920-247-21-000553-mc
Going forward, all documents further placed before, and not rejected by, the Board
shall be added to the aforementioned website, and that website shall be the Board’s
official repository for the record in this matter.
DATED this _____ day of ________, 2022.
BOARD OF COUNTY COMMISSIONERS
ANTHONY DeBONE, Chair
ATTEST: PHIL CHANG, Vice Chair
_______________________________
Recording Secretary PATTI ADAIR, Commissioner
ORDER NO. 2022-003
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Denying Review of Hearings
Officer’s Decision in File Nos. 247-21-
001116-A, 247-21-920-A, and 247-21-
000553-MC.
*
*
ORDER NO. 2022-003
WHEREAS on June 3, 2021, Central Land and Cattle Co., LLC initiated 247-21-000553-MC
with a new land use application; and
WHEREAS, on September 30, 2021, an administrative decision was issued by Deschutes
County Community Development Department approving the proposed development with
conditions; and
WHEREAS, on October 12, 2021, appeal 247-21-000920-A was submitted by Annunziata
Gould, represented by Jeffrey Kleinman; and
WHEREAS, on November 4, 2021, a public hearing was held at 6:00pm in the Barnes and
Sawyer Meeting Room and by Zoom for the Deschutes County Hearings Officer review of 247-21-
000553-MC and 247-21-000920-A; and
WHEREAS, on December 21, 2021, the Deschutes County Hearings Officer approved
Application No. 247-21-000553-MC; and
WHEREAS, on December 30, 2021, Annuziata Gould, the Appellant, appealed the Deschutes
County Hearings Officer’s Decision on Files 247-21-000920-A and 247-21-000553-MC (Appeal File
No. 247-21-001116-A) the; and
WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code (“DCC”) allow
the Deschutes County Board of County Commissioners (“Board”) discretion on whether to hear
appeals of Hearings Officers’ decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application
on appeal; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
REVIEWED
______________
LEGAL COUNSEL
ORDER NO. 2022-003
Section 1. That it will not hear on appeal application 247-21-001116-A, 920-A, 553-MC
pursuant to Title 22 of the DCC and other applicable provisions of the County land use ordinances.
Section 2. Pursuant to DCC 22.32.015, the County shall refund any portion of the appeal
fee not yet spent processing the subject application. If the matter is further appealed to the Land
Use Board of Appeals and the County is required to prepare a transcript of the hearing before the
Hearings Officer, the refund shall be further reduced by an amount equal to the cost incurred by
the County to prepare such a transcript.
Section 3. Pursuant to DCC 22.32.035(D), the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
developed before the lower hearing body for file nos. 247-21-001116-A, 920-A, 553-MC as
presented at the following website:
https://www.deschutes.org/cd/page/247-21-001116-appeal-hearings-officer-decision-247-21-
000920-247-21-000553-mc
DATED this _____ day of ________, 2022.
BOARD OF COUNTY COMMISSIONERS
ANTHONY DeBONE, Chair
ATTEST: PHIL CHANG, Vice Chair
_______________________________
Recording Secretary PATTI ADAIR, Commissioner