2006-387-Minutes for Meeting December 20,2005 Recorded 4/7/2006DESCHUTES COUNTY OFFICIAL RECORDS CJ 1006.31
NANCY BLANKENSHIP, COUNTY CLERK
COMMISSIONERS' JOURNAL
II I 11111 I IIII 111 ~ ~i~i u i 04/01/006 10:o5:09 AM
Z00i=387
DESCHUTES COUNTY CLERK
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Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
MINUTES OF PUBLIC HEARING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
TUESDAY, DECEMBER 20, 2005
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
Present were Commissioners Dennis R. Luke, Michael M. Daly and Bev Clarno.
Also present were Laurie Craghead, Legal Counsel; Devin Hearing, Kevin
Harrison and Catherine Morrow, Community Development Department; Attorney
for the applicants; media representatives Chris Barker of The Bulletin and Barney
Lerten of News Channel 21; and approximately one hundred and fifty other
citizens.
The purpose of the meeting was to take public testimony regarding land use
application CU-05-20 from Thornburgh Resort Company LLC.
Vice Chair Mike Daly opened the meeting at 9:00 a.m.
Vice Chair Daly opened the meeting at 9:00 a.m., and read the opening statement
(a copy is attached marked as Exhibit A).
Commissioner Daly asked that those who wish to testify to try not to repeat the
testimony of others, and if they agree with other testimony, they can so state.
Commissioner Daly asked if the Commissioners wished to declare any conflicts of
interest, pre-hearing contacts, prior hearing observations, or bias.
LUKE:
Before we do this, I would like to ask Legal Counsel a question on the first part of
the opening statement. It says that if things aren't entered into this hearing that
they couldn't be appealed to LUBA (Land Use Board of Appeals). But since the
whole record of the Hearings Officer's decision and the whole record of the file,
any opponent who has brought stuff up during that is part of this hearing, so they
therefore would have an ability to appeal if they so chose.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 1 of 118 Pages
LAURIE CRAGHEAD:
Correct. Also, there is another seven-day period after the end of this when people
can submit rebuttal argument. The only new evidence that can come in is rebuttal
evidence to what has been submitted between November 9 and the end of today's
hearing.
LUKE:
On November 17, 2005 I participated in a League of Women Voters' forum on
destination resorts, and it was supposed to be in general. Paul Dewey was a
member of that panel, and Linda Swearingen and I were members of that panel.
During the course of that panel discussion Linda went into Thornburgh a little
more than the League of Women Voters had intended. It was not much more than
what is in the record anyway. There was a question from the audience which
asked that I not be a party to and not participate, and the answer to that question,
and the League agreed with it, so we didn't get to the question and answer on
Thornburgh. The forum was supposed to be on destination resorts in general in
Deschutes County.
CRAGHEAD:
The newspaper reported that the reason we are at this hearing is that there were
negotiations with the applicant to set up this hearing date. It is on the record.
LUKE:
There was an article by the applicant in The Source on water, and there was a story
by Chris Barker in The Bulletin. And I have read both of those. I hope they are in
the record, or staff will get them in the record.
DALY:
Bev, do you have anything to declare?
BEV CLARNO:
Absolutely not.
DALY:
Okay. I also read The Source article, and I have a copy of it if nobody else does
and you need to put it into the record. There have been numerous articles about
this over the last couple of weeks. I think we all have read those. Other than that,
I have nothing else to disclose.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 2 of 118 Pages
LUKE:
The e-mails that were sent to the Board were put into a file that Community
Development has access to. I actually had to put another one into it today. Those
are listed on this.
DEVIN HEARING:
Those are the e-mails that have come in since November 30. The stuff that came
before November 30 went right into the record. It is itemized in there.
DALY:
I also want to point out that today in my box I got a letter from the Bureau of Land
Management concerning the northerly access to the property. It is the first time I
had seen it, and I read it.
HEARING:
We have a copy of it.
DALY:
Does any party wish to challenge any Commissioner based on ex parte contact,
bias or conflicts of interest?
PAUL DEWEY:
Commissioners, I represent Nunzie Gould. I have some questions in aid of an
objection regarding ex parte contact that Laurie briefly alluded to. That had to do
with negotiations with the applicant. I would like a more complete disclosure of
the contacts between the applicants and the threat of the mandamus action they
brought, and the negotiations that you had with each other and disclosure of what
agreements were made between you. And also the contact between counsel and
you regarding our appeal that you decided not to hear.
CRAGHEAD:
Commissioner, if I may. The disclosure of that ex parte contact was in the order
itself and talked about the threat of the mandamus. All of the discussions were
done in executive session and under attorney-client privilege.
DEWEY:
I understand that attorneys may have communicated with each other, but that was
as a messenger. I'm not asking for any attorney-client privileged material. I'm
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 3 of 118 Pages
just asking for the communications that went from the applicant to you all and
back to them.
LUKE:
And I don't mind answering this. Staff conducted all negotiations and contacts
with the applicant. Staff met with the Commissioners in executive session. The
one executive session took place while Commissioner Daly and staff were in
Eugene and I was back in Bend. We did that by phone call. But I have not had,
during the negotiation process, any direct contact at all with the applicant. It was
entirely staff, and staff came to the Commissioners to ask for a decision.
CRAGHEAD:
The discussion of an appeal was not done with the applicant; it was based on
discussions with Legal Counsel.
DEWEY:
My concern is that even if there is indirect contact between the Commissioners and
the applicants, if you used an intermediary to communicate with them, those
communications should be revealed.
LUKE:
I did not - legal staff and planning staff met with us in executive session and
explained to us what our options were. And we made a decision to go ahead and
open up this hearing.
CRAGHEAD:
And just for the record, Mr. Dewey, on behalf of his client, has filed an appeal of
that initial order to the Land Use Board of Appeals. And we have responded with
a motion to dismiss the issues raised on that issue.
DEWEY:
I just wanted to preserve my objection on the failure to disclose all ex parte
contacts. Thank you.
LUKE:
You don't want me to leave?
DEWEY:
I just wanted to preserve my objection to failure to disclose ex parte contact.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 4 of 118 Pages
DALY:
Is there anyone else out there who would like to challenge any Commissioner
based on ex parte contact, bias... I see a hand up out there, would you like to
come up and identify yourself.
STEVE MUNSON:
I'm a resident of Deschutes County. My mailing address is 1183 NW Wall Street.
I have three issues that I would ask be responded to with respect to potential
conflicts of position or stated comments that reflect bias.
The first one has to do with the League of Women Voters' meeting that
Commissioner Luke alluded to. At that meeting, Commissioner, you stated on the
record, which we do have, that "In 1993 Bev Clarno, then a State Representative,
and myself got a bill through that required a study of the Deschutes and Crook
basin. We finished that study about three years ago." And throughout many of
these hearings, including hearings in the destination resort remapping process, this
panel and other places, there have been many requests for an updated water study.
I believe that your comments reflect some bias that perhaps we don't have a water
problem in this basin that could be adversely impacted by new resorts or
subdivisions.
LUKE:
My comment, as you remember, was to a comment by Paul Dewey that there is no
water study. I pointed out that Senator Bryant was very helpful in getting that
passed, also. But all the local governments in the area, Deschutes, Crook and
Jefferson Counties, the cities, the State and the Federal government all participated
in the Crook and Deschutes basin water study. We have more information on the
Crook and Deschutes basin than any other basin in the state. I am proud of that,
and think that all the people came forward. Because of that, we know the
interaction between the groundwater and the surface water and have mitigation
requirements for anyone, including subdivisions, cities, and counties, anyone who
wants to drill a well.
There has to be mitigation. I am very proud of that. I think we did an excellent
job. I don't think it shows a bias. I was proud of the fact that we got the bill
through because after we did it, Governor Roberts, because we were upside down
$1.2 billion in the general fund in the 1993 session, was going to put that money
somewhere else. There was a lot of pressure put on her, especially from the
delegations from eastern Oregon, to have the State step up. Because if the State
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 5 of 118 Pages
hadn't stepped up we would have lost the local and Federal funding. It was very
important to have that water study done. I'm proud of the water study. And I did
not say on the record that we have a water shortage or not; I said that we know the
relationship now between the surface water and the groundwater.
MUNSON:
And if there were data entered into this record that that information is quite dated,
and that a new study is warranted based on many new wells and water uses, would
you be open to a water study?
LUKE:
That's inappropriate to ask here. Legal Counsel?
CRAGHEAD:
Yes, at this time it is just a matter of you making a challenge based on that bias and
state your statement in that regard on your perceived bias.
MUNSON:
Thank you. My next question is, is it possible that there is a conflict going on
between the County Commission and the County Planning Commission in that
there are numerous - I believe five different meetings have been held under the
destination resort remapping process, during which the Thornburgh Resort has
been discussed.
LUKE:
Not by the Deschutes County Board of Commissioners.
MUNSON:
I believe, sir, that you attended one of those remapping meetings and commented
on a number of topics.
LUKE:
A joint meeting, but there was never any comment on Thornburgh.
MUNSON:
Would it be possible for the public to get the tapes that we requested of those
remapping meetings, today or tomorrow, so that we can use them in our comments.
They have been denied to us.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 6 of 118 Pages
CATHERINE MORROW:
I am unaware of any request for these tapes. We will provide them as soon as we
are able.
DEVIN HEARING:
I've been contacted by Mr. Sandy Lonsdale yesterday afternoon regarding those
tapes. From the pure volume of work that we have done in preparation for this
meeting, we haven't been able to respond to that request. If there are tapes
available, we can certainly pass those on to the people who are interested. It is just
a matter of the sheer volume of work we are doing in a short amount of time. If
they are available, we will pass them on.
LUKE:
Any idea when you might have them out?
HEARING:
Today is Tuesday. We could have them by the end of the week. I haven't been
involved in the long-range planning process to see what their tapes are and how
long their meetings have gone. I am guesstimating that they have been pretty
lengthy meetings. Certainly by the end of the week seems to be a reasonable time.
DALY:
Are you asking for copies of the tapes or transcripts of all of them?
MUNSON:
We are asking for the tapes and we will have our own transcripts made. And I
would like to say that I was told by Sandy Lonsdale that he requested those tapes
last Wednesday. You'll have to ask him if that is true, if you want to know.
DALY:
Do you have anything else?
MUNSON:
I do. We, that is local citizens, have requested numerous times full disclosure of
the financial ownership, owners and participants of the Thornburgh Resort. There
was one question on the record at the first hearing, there were numerous questions
by numerous citizens asking for that data...
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 7 of 118 Pages
CRAGHEAD:
Is this related to a bias or conflict of interest?
MUNSON:
It is. Or I wouldn't be bringing it up now. Thank you.
DALY:
To a Commissioner?
MUNSON:
These - well, what we believe the citizens have a right to see is all of the financial
ownership so that Commissioners can determine, and the public can determine, if
there are parties making comments in support of that project, or sending e-mails to
the Commissioners, who have a vested financial interest in the project. We believe
at this time, we believe there are potential conflicts out there.
CRAGHEAD:
Conflicts with the Commissioners?
MUNSON:
There well may be, and those kinds of conflicts we have a right to know about if
they exist or don't, or conflicts where campaign contributors are owners of this
resort. We don't know that data. We are not alleging that it's true, please
understand that, but it could be true. And we have been blanked in every effort
we've made, numerous people have asked for that data.
DALY:
I have not heard of this request for any data for financial records. Is staff aware of
any requests of this nature?
CRAGHEAD:
I am not aware of that, and it is not something that the Commissioners can order be
done, because we don't have any subpoena power or anything to that effect in this
hearing. I'm not sure how we could get that information...
LUKE:
Are you suggesting one or more of the Commissioners have a personal interest in
the resort?
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Tuesday, December 20, 2005 Page 8 of 118 Pages
MUNSON:
I have stated what the concern is. The concern is...
LUKE:
I'll put on the record that I have no financial interest in the property or the resort
itself, and have not been promised anything for any votes.
MUNSON:
That wasn't my concern...
LUKE:
The concern was whether the Commissioners have a financial interest...
MUNSON:
Campaign contributors...
LUKE:
Financial interest that is what you are asking for. I'm putting on the record that I
do not have a financial interest in the property or the resort.
MUNSON:
And I understand that. But that doesn't answer my question.
CRAGHEAD:
Commissioners, I believe what Mr. Munson is saying is that you might not be
aware that someone who might be a co-owner in the project has contributed to
your campaign at this time.
MUNSON:
It is not an allegation, sir. It is a question that we would like answered. That's all.
LUKE:
All contributions are a matter of public record, and you can get copies of that
anytime.
MUNSON:
But we don't know who the financial contributors are, and I believe it is required
under State or County regulations that we do know. And they have refused to give
us that information. That's my point.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 9 of 118 Pages
DALY:
I want to point out that all campaign contributions are public record and we have to
disclose who made campaign contributions. You can go up to the Clerk's Office
and get a copy of those contributions anytime you wish.
MUNSON:
Absolutely, I understand that, sir.
CRAGHEAD:
The issue is not whether or not your records are open to public record. The issue is
whether or not the investors' records are open so that we know if there is a
connection between your public records and the financial records of the investors.
MUNSON:
Please understand, this is not an allegation of any kind. It is just a question and
concern about those records.
DALY:
I will put on the record that I have no interest whatsoever in this Thornburgh
Resort.
CLARNO:
I will put the same on the record as well. (Faint recording; she changed
microphones at this time)
MUNSON:
Thank you for the opportunity to comment.
LUKE:
Does Legal Counsel have any comment on what was just presented? Because I
find that is typically not the kind of things you get on...
CRAGHEAD:
I think that they are valid questions to be asked because of the possible connection,
but that we don't know about at this time. I doubt that the Commissioners have
any power to (unintelligible) - someone wants to raise that issue, they would have
to (unintelligible) - potential conflict.
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Tuesday, December 20, 2005 Page 10 of 118 Pages
(Some difficulties with the microphones; took a few minutes to get everything
working properly)
CLARNO:
Okay. For the record, I have no financial interest whatsoever in the proposed
destination resort.
DALY:
I still have a little bit left in this document. Does any other party out there wish to
challenge any Commissioner based on ex parte contacts, bias or conflicts of
interest?
No further testimony was offered.
DALY:
Okay, seeing none, we will proceed.
We will open the public hearing, beginning with the staff report.
LUKE:
Commissioner Daly, we have had a whole bunch of people come in since we
brought the sign-in sheets up. You might ask if anyone else wants to sign up.
DALY:
We have sign-in sheets here. If anyone else wishes to testify, they need to sign up.
The Commissioners were advised there are other sign-up sheets already at the
table.
DALY:
There is a proponent sheet and an opponent sheet.
Okay, I am ready for the staff report.
DEVIN HEARING:
I'm Devin Hearing of Deschutes County Planning staff. What I am going to do for
you is outline where we've been with the process... staff, applicant, and public
hearing processes. Again, this is CU-05-20, Thornburgh Destination Resort. This
is actually the conceptual master plan. Destination resort is divided into three
separate processes. This is the first process, the conceptual master plan. There
will be a second process, a final master plan; and then the third part of the process
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 1 I of 118 Pages
is the actual development, tentative plat, site plan application process. Again, this
assumes that the application moves forward from this point.
This application was denied by the Hearings Officer Staff on November 9th and
brought up for review again by the Deschutes County Board of Commissioners.
The application was originally submitted on February 16, 2005. It will be coming
up on a year in a couple of months. It was accepted for review on March 18th.
Because going into spring is our busy time of the year, the first hearing on this
application wasn't held until July 14th. Obviously there was a lot of interest in this
application. The hearing was continued to August 17th, and we met again on that
date to describe this resort. On August 17th we had a malfunction, a corruption of
our MP-3 tape player disk, so we don't have a transcript or audio record of that
hearing. All the evidence submitted in the record, the written record, is still
available. The audio portion was lost for the August 17th hearing. Again, the
decision of the Hearings Officer was for denial, and that was rendered on
November 9th of this year. The Hearings Officer's reasons for denial can be
categorized into three broad categories. Category one was that the Hearings
Officer believed that the applicant didn't prove that there was adequate protection
for open space. Her second general area of interest for the denial was an
inadequate ratio of overnight to single-family residential units. And, finally, her
third area of denial or interest was that she didn't believe they demonstrated
adequate water supply for the resort. That was contrary to our initial staff report.
We had actually recommended approval of this application. With that approval we
recommended twenty conditions of approval that we felt needed to be applied for
them to get to where they needed to be in this application. We felt at that time that
those conditions did address those specific issues that the Hearings Officer denied
the application on; however, she chose to go a different direction and did deny it in
those three general areas of interest.
Again, those interest areas were open space, overnight to permanent residences
ratio, and inadequate water. The Board brought this item up for review on its own
to discuss those issues in a pattern format - a de novo hearing broken down into
four areas of interest. And those are (1) portions of the Hearings Officer's decision
as a basis for recommending denial; (2) the issue of northerly access through BLM
land; (3) conditions generally set forth in the staff report recommendation - again,
those twenty recommendations we had originally; and (4) creation of appropriate
findings to address in particular those issues that were either not addressed or were
not sufficiently addressed in the Hearings Officer's decision. And because of the
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Tuesday, December 20, 2005 Page 12 of 118 Pages
August 17th hearing tape being missing, (4) comes back in to play so we can
respond with adequate findings for the decision that you'll make.
That's all I have at this time, so I'm open for questions.
CRAGHEAD:
Commissioners, if I may point out also that because of the August 17th problem,
we are operating on a redundant recording system today and have backup for the
recording.
LUKE:
Legal Counsel... and I should have brought this up when Mr. Munson was up here.
I think in the interest of full disclosure, Mr. Munson and his company have an
application before the County Commissioners to purchase property in La Pine from
us. I just wanted to put that on the record.
CRAGHEAD:
And that application will not bias you in either way, for or against the application.
LUKE:
No.
DALY:
Is that the staff report?
HEARING:
It is.
DALY:
The next person to testify is the applicant. You have thirty minutes.
PETER LIVINGSTON:
Good morning, Commissioners. I am Peter Livingston, representing the applicant.
My address is 1211 SW 5t'' Avenue, Suite 1600-1900, Portland, Oregon, 97204.
With me today are Martha Pagel from Schwabe, Williamson and Myles Conway,
sitting behind me, also from Schwabe, Williamson.
We're here representing Thornburgh Resort Company, which proposed to develop
a destination resort on 1,970 acres located near the Cline Buttes. Behind you and
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 13 of 118 Pages
around you are a number of graphics that illustrate different aspects of the
application. I'm not going to deal with those now; I expect you are familiar with
them and will become more familiar with them. So this isn't really about the
details of the application.
You can find a general description in the burden of proof statement on pages 1-4.
And that is the last document in the notebook that we gave you this morning,
which is itself a response to the four areas of concern (a copy is attached marked
as Exhibit B)
If you look quickly at the notebook, you can see that the first section is broken into
a discussion of those four issues. The second section is a chart that identifies the
approval criteria and leads you to the documents in the third, fourth and fifth
sections, which are the final argument, the response memorandum and the burden
of proof statement. So, you can work your way into those documents by using this
chart, if you have any particular concerns about one issue or another.
I'd like to introduce the people behind the Thornburgh Resort Company and the
consultants who have contributed to this application. They are all here today and
are all available to answer questions if you have any. Kameron DeLashmutt is
sitting right here; he's the Chairman and agent of the company. Over here in the
blue sweater is David Chapman, who is the president of the company; then, as
consultants, Chris Clemow in the black sweater there, from Group McKenzie who
is our traffic expert; David Newton from Newton Consultants, Inc., who is our
water expert; Kim Hatfield from Tetra Tec, who is here to talk about wildlife and
archeology; and John Jackson from Singletree Enterprises, who has assisted us in
the fire and safety evacuation issues. And Jeff Fuchs from Hickman Williams, our
engineer, is also in the audience and available to answer questions.
As I said, we are here to address the issues that were the basis for the Hearings
Officer's denial of the application, and the one condition that has been proposed by
staff with which we disagree. And I wanted to make one more point about the
notebook. At the end of each of the individual discussions you will find exhibits
pertinent to that discussion. And I may allude to those during this presentation.
Some of these are revisions of earlier exhibits and they supersede the earlier
exhibits.
The first issue that I am going to discuss is open space. As you probably know,
State law and County Code require that at least 50% of the area of a destination
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Tuesday, December 20, 2005 Page 14 of 118 Pages
resort be preserved as open space. Now, if you look at tab section 2, open space, at
the back you can see a table that looks like this, it's called open space calculations.
And what that table does in the line, total open space, gives you the total number of
acres of open space in each of the phases, and then gives you a cumulative number
in the totals column. If you look down to the bottom, it gives you a percentage that
is 69%; 69% of this resort will be preserved as open space. The concern, and as I
explained in the memo, one of the concerns the Hearings Officer had was that the
conditions, covenants and restrictions that we had drafted did not adequately
protect open space. What she was focused on was a statute that says that 80% of
the property owners can vote to actually sell some portion of the common property.
And if that common property was also open space, that would open the door to a
reduction of open space.
So, what we have done is to revise the CC&R's. Behind that chart you will see a
short number of pages where those revisions are identified. And we have also
submitted revised CC&R's into the record in full. Those pages tell you where we
have made changes that will preserve open space. One thing we've done is move
the golf course area under the umbrella of the CC&R's, so that is now covered.
And we have stated that it is a covenant that will be recorded that at least 50% of
the property must be preserved as open space. And we have to have an affirmative
vote of all of the owners, the declarant, the golf course, the golf club, the
association and the County - the County has to vote to reduce that percentage -
which is in CC&R language a way of saying it cannot happen without the approval
of the County. The only time that could happen would be if the use were going to
be changed from destination resort. So, that's a guarantee in the CC&R's that
there will never be less than 50% open space.
Finally, as it stands any change in the plat of the destination resort, and you will
recall that the destination resort will have platted areas as open space, any change
in that plat would have to be reviewed by the County. Even if it is done by lot line
adjustment, there would still be a review by the County. The County Planners will
be looking at any requests to re-plat, and they will realize that this is in a
destination resort and the first thing they will do is check the criteria to determine
that at least 50% must be preserved as open space. So they are not going to
approve a plat unless that rule is observed. So there is an iron-clad rule right in
your Code and in the law that says we cannot do that, we cannot reduce it below
50%.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 15 of 118 Pages
The second issue is overnight lodging. The rule there is that there has to be a two
to one ratio of overnight lodging to straight residential use. And private residences
that are available for rental 45 weeks out of the year count as overnight lodging.
The Hearings Officer found that we hadn't met that standard, but she misread a
table that we had submitted. And that is, in section 3, you can see this chart here.
Overnight and density calculations. And what that tells you in the line marked
"ratio of cumulative units overnight", it's right below the chart that talks about
total acreage and so forth, you see that ratio never drops below two. So we did
preserve that ratio. What the Hearings Officer apparently did was subtract the
number of hotel units from the amount of overnight residential lodging. She just
made a - she just misread the table, we think. We can't figure out how she got to
her numbers otherwise. The fact is, as this shows, we will always have at least
twice as much overnight lodging or hotel units, which count as overnight lodging,
as we have residential units.
Now, she was also concerned that there was apparently no entity responsible for
maintaining the reservation system and carrying out all of the other requirements
of your Code, 18.113.070.u, which itself is very precise about what has to be done
to protect the overnight lodging. What we will assure you now is that the applicant
will be responsible for this system, and if there is ever a transfer to another entity,
the transferred property will be subject to a covenant, enforceable by the County,
that the successor also has to maintain, the overnight lodging, reservation system,
and carry out all of the other details required by your Code. So that, again, it
simply cannot fail. It is logical to have the hotel running the overnight lodging,
since people are naturally going to call the hotel and ask for reservations. This is
the way it is done in most destination resorts.
Now, the third item is water, and for that I have my colleague, Martha Pagel, to
explain how we are meeting that standard.
MARTHA PAGEL:
Thank you. I am very pleased to have the opportunity to talk with you about the
water issue because, as you probably well know, from the outset it has been a
pretty hot topic associated with this project. But, for the reasons that we've laid
out in the written materials that you have in front of you and that I want to briefly
cover today, I think that there is not a reason for water to be a hot topic in
connection with this project. What we have shown from day one that the source of
water to provide service for the project is groundwater, and we have studies in
place that tell us that there is a great deal of groundwater available. The State of
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Tuesday, December 20, 2005 Page 16 of 118 Pages
Oregon Water Resources Department confirms this, our own water report that was
provided confirms this, and even the opponents' own expert testimony confirms
that there is sufficient groundwater available. And additionally that pumping new
wells for the Thornburgh project would not have an adverse impact on other
neighboring wells. So, we've got the groundwater issue covered. The hot topic
has been more focused, I believe, on the issue of mitigation, and that was the basis
for the Hearings Officer's conclusion that Thornburgh had failed to meet the
County standard. And the County standard is that we have to show that water is
available for the project. We thought we met that by showing that groundwater
was available and that it was feasible and likely that we would receive a water right
application approval. It is laid out in the materials.
The Hearings Officer concluded that it was her understanding, and as we have
pointed out it was a misunderstanding of the State water rights process; she found
that we would have to show that we had mitigation projects, mitigation in place, in
order to have the water right application approved. In fact, that is not the way the
State Water Resources process works in getting an application approved, and I've
laid out the rules and the process for you. Because we had provided only evidence
of the general sources of mitigation and the process and strategy that we were
going to follow, the conclusion was that we hadn't provided adequate evidence.
For today, let me just cut to the chase and say that since that Hearings Officer's
decision came out in November, we have been working very hard to make sure that
we did secure option agreements for all of the surface water rights that are needed
to convert to mitigation credits, to provide full mitigation for the project. So what
we are providing to you today in the form of exhibits and the notebooks that you
have in front of you, as well as a couple of other documents that we will provide to
you including a letter that we just received today from Rex Barber, Jr., President of
Big Falls Ranch, I am very pleased to report that we have entered into an option
agreement to secure surface water rights, 464.9 acres, that can be converted to
mitigation credits. And this amount, when coupled with the other option
agreements that Thornburgh had already secured, will provide enough in
mitigation credits. On top of that, as you will see in the materials, we have now
submitted to the Water Resources Department our specific mitigation plan or
proposal. This allows the water right application to go forward. But I point out
that even after Water Resources approves a water right application, they don't
require the mitigation to actually be in place for up to five years, and that is
precisely to let the applicant go through the process, determine exactly whether the
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 17 of 118 Pages
water right will be approved and how much mitigation is required, and then go
through the process of actually securing it.
So, the policy question that is in front of you today is whether to adhere to the
Hearings Officer's approach which basically, in our view, puts the cart before the
horse. It says you have to get mitigation before you have gone through the rest of
the process. So, whether you want to follow that policy approach, which we think
is not going to be a practical policy and not consistent with the State Water
Resources Department process. But the bottom line is that no matter how you cut
it, as of today we will be providing the evidence to demonstrate that Thornburgh
has secured the necessary surface water rights for full mitigation for the project.
LIVINGSTON:
Thank you, Martha. Now the last item on this list of mine is the condition - we
essentially agree with all of the staff conditions except one. That one is the
northern access point condition. As you know, the resort property is in two
separate blocks, and at this point there is no permitted road access to the northern
portion of the resort, which is the Pinnacle community. The southern portion, the
Tribute community, borders directly on Cline Falls Highway, and there are two
access points there.
Now, Thornburgh has a pending right-of-way application with the BLM seeking
authorization for a northern access point across federal lands in section 18 to make
a connection with an existing road easement already granted to Eagle Crest. And
we are also seeking a right-of-way authorization for a connecting road between the
northern and southern portions of the property. Through the last year Thornburgh
has worked closely with BLM to identify right-of-way locations that are consistent
with the Federal Lands Policy and Management Act in the BLM's Upper
Deschutes Management Plan. The proposed right-of-way routes utilize existing
and developed road connections and emphasize shared use of public roadways.
BLM has stated that Thornburgh's request would minimize any additional
disturbance of land and would consolidate access points in a single location.
BLM has stated that Thornburgh's right-of-way request is a reasonable and
feasible alternative that appears to balance BLM's competing objectives. So, BLM
is processing the right-of-way applications, they have stated it is feasible, and there
is a NEPA (National Environmental Policy Act) process underway. BLM has
determined its cultural resources inventory specifications for archeological
consultants working on BLM lands.
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There is a cost recovery contract between Thornburgh and BLM. And the
Thornburgh application was deemed complete by BLM on November 4 of this
year. A final BLM decision is expected about six months after the completion of
the NEPA process. What I am saying here is that we are involved and engaged in
the BLM process. They are telling us the likelihood of success is good, but their
process stretches on. Now, the staff report proposes a condition of approval, "The
applicant shall provide a signed, formal agreement with the U.S. Department of the
Interior, Bureau of Land Management, for an access easement connection to U.S.
Highway 126 at Eagle Boulevard" - that's the northern access - "or provide other
documentation of legal access to U.S. Highway 126 prior to submission of a final
master plan application".
Well, since that proposed condition, these events have occurred. BLM has
authorized the use of an existing access road across federal lands in Section 28 to
provide direct access to the southern portion of the resort. The City of Redmond
Fire Department has determined that the two existing access points to the southern
portion of the resort are sufficient to provide emergency and fire access to the
southern development, the Tribute community.
In the first phase of development, Thornburgh will construct an all-weather access
road across the northern portion of the resort to provide for a connection to an
existing Highway 126 access point in the event of an emergency. So, those things
will happen. What we are trying to achieve here is to state that there is no basis to
tie the final master plan to the BLM grant of access to the northern portion of the
resort. This is because that northern portion will not be developed any time soon.
It does make sense to tie the building and development of the Pinnacle community,
the northern portion of the resort, to this grant of a northern access. That is, once
people actually start living or using the northern portion of the property, they must
have access to the north. We agree with that. So we would like to have that
condition revised to state that "The applicant shall provide a signed, formal
agreement with the U.S. Department of the Interior, BLM, for an access easement
connection to U.S. Highway 126 at Eagle Boulevard, or provide other
documentation of legal access to U.S. Highway 126, prior to submission of any site
plan or subdivision approval in the proposed Pinnacle community". In other
words, tie that northern access to the inevitability of development in the northern
section rather than to having us completely hold off and do nothing, and be unable
to submit a final master plan until that northern access is provided. That's what
that is about.
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I wanted to say one more word, which is about financial condition. I have here an
exhibit (a copy is attached as Exhibit C.) These are letters from Umpqua Bank and
U. S. Bank. Umpqua Bank letter says that there has been a $1.76 million line of
credit to Kameron DeLashmutt to fund home construction, and a $1.7 credit
facility for the purchase of 436 acres, which is secured by David Chapman and
Kameron DeLashmutt. There is also a $2.7 million credit for the construction of a
sales center. The U.S. Bank letter says, based on a review of the finances of the
two principals here, and Gary Maddox, the third, that the resort is feasible based on
cash flow, collateral and a total net worth of the principals exceeding $125 million.
You also have a letter in the record from Mr. Chapman's accountant which
effectively is an endorsement of him as a businessman based on over a decade of
experience with him. So, the money is there and these issues we believe have been
addressed. And with that I'd like to stop and reserve the rest of my time for
rebuttal.
DALY:
Okay, thank you.
(To the other Commissioners) Do you have questions for the applicant?
LUKE:
You have 9 minutes and 25 seconds left for rebuttal.
In the letter you handed us from U.S. Bank, they list three members of the LLC.
I'm not going to ask you who the other members are, but I am going to ask you if
there are other members of the LLC that are not listed.
LIVINGSTON:
Mr. DeLashmutt has just told me that there are just three members, Gary Maddox,
David Chapman and Mr. DeLashmutt.
DALY:
I got this map today from BLM and I think it pretty well depicts the proposed
access that you are talking about through the northern section, and the southern
section down here. My understanding is that your proposal is that you aren't
necessarily interested in doing this because this northern portion wouldn't be
developed until toward the end of the project.
LIVINGSTON:
It would be the second portion, yes.
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DALY:
Is this access already secured or not?
LIVINGSTON:
Yes. There are two access points. Myles Conway is actually the expert on this,
but I'll do my best right now. The access to Cline Falls Highway is secured and
there is another federal road that we have authority to use, which also comes down
there.
MYLES CONWAY:
If I could clarify, I've been the person working on the access issues. The southern
portion of the resort has a direct connection to Cline Falls Highway. There is also
an existing road that provides access to one of the parcels that is part of the
application, and it received authorization from BLM. BLM has given us
authorization to use that road in its existing and current configuration. So it is
something that we can use right now for emergency purposes, and will fulfill our
responsibility for secondary access for emergencies; but it is also subject to our
right-of-way request so it will be something in the long run that we will try to use
through the right-of-way process. But right now it is simply an emergency access.
DALY:
Is this the road that is existing now, that actually goes to what I have known as the
Kim property?
KAMERON DELASHMUTT:
That road to the south actually goes to the Bennett property. It turns off of the
highway to go up to the Kim property; if you follow the road off to the right it goes
up to the Kim property; if you follow it to the left it loops around and goes to the
Bennett property.
DALY:
Okay. I know which road you are talking about. Thank you.
CONWAY:
If I could add one other point there. There is also a connection between the
northern and southern portions of the resort that is provided across land that is
under a lease from the State of Oregon Division of State Lands. That's the only
point of connection between the north and south at the present time.
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CLARNO:
Earlier there was a question regarding potential financial contributors, et cetera.
Are there other investors involved in the project, and other LLC members?
LIVINGSTON:
No, there are not. But there is sort of a sales technique that brings other people in
as potential owners of the property, but they are not part of the development
company.
DELASHMUTT:
The project has got 23 founding members who do not have any equity ownership
or interest in the company or the project. They are entitled to real estate and golf
memberships. In the company itself there are only three members, and those are
the only investors of the company.
DALY:
I have one more question. You indicated that you recently acquired 469 acres of
surface water rights from Rex Barber, Jr. What does that mean, exactly?
MARTHA PAGEL:
Okay. The 464.9 acres of surface water rights were issued already by the Water
Resources Department for irrigation use, and have been used for irrigation. These
water rights can be acquired under this option agreement and converted, or
transferred, into what are called mitigation credits. The way you do that is by
taking this existing irrigation use and turning it into an in-stream flow water right
that is held by the State. It is protected as in-stream flow, and that is intended to
offset the potential impacts of groundwater pumping that would be authorized
under the new water right. So the basic requirement to get the groundwater right is
that you have to meet all of the other requirements and. provide mitigation. So this
464.9 coupled with other option agreements that Thornburgh had already secured
as described in the materials gives enough total acres of existing irrigation that can
be converted into mitigation credits. And we've done that on the basis of 1.8 acre
foot of mitigation water for each acre of irrigation. That is the rate that the Water
Resources Department has been using. We have consulted with them to determine
that is an appropriate rate for this kind of conversion. In each case it has to go by
an actual application review; but the 1.8 is the standard rate for this use.
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DALY:
Okay, so in other words what you are saying is that you are not taking any more
water out of the ground than is already being done. You are taking another use and
putting it on to this project, so the net usage is zero.
PAGEL:
Commissioner Daly, I'd put it a little differently. This isn't a new groundwater
use. But in order to get that new groundwater use we have to retire an existing
surface water use. So the existing irrigation has to stop and be converted into in-
stream flow. That will then authorize the new use for the project, which includes a
variety of types of uses - irrigation on the golf courses, domestic, commercial -
it's all under an umbrella called "quasi municipal use". So you get a new
groundwater use and in exchange for that retire an existing surface water use. That
is the primary method of providing mitigation. There are other ways that are
allowed, but that is the way that most projects are going forward.
CRAGHEAD:
Mr. Chair, if I may make a suggestion. If we can have the table available for the
subsequent testimony so we can have two people up at a time, so that as one comes
down the next person comes up, so it can go more rapidly through each of the
witnesses.
DALY:
All right. Sounds like a good idea. Okay, the next people to testify are the
proponents of the application. I have a sign-up sheet here. Okay, Dick - I can't
pronounce the last name - from P. O. Box 1557, Sisters, Oregon. And the one on
deck is some guy named Wes - no last name, no address, no phone number.
DICK REINERTSON:
Thank you. My name is Dick Reinertson. That's why it is easier to say Rhino.
DALY:
Excuse me. One more person needs to come up here. Is this Wes guy out here
somewhere? Don't see him. Steve Johnson, would you please come up and be on
deck, ready to go. Okay, let's start again.
REINERTSON:
My name is Dick Reinertson, 2254 Crossbill Court in Eagle Crest. I have been in
real estate since 1990, and one of the reasons my wife and I came to Central
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Oregon from San Francisco is the quality of life. And I have found in my business
that is what people want when they come to Central Oregon. And I think we are
dealing with very, very qualified people in this Thornburgh application.
Approximately three months ago I had the privilege - and I mean that - of meeting
David Chapman and Kameron. I was showing them some property and then, in
turn, they showed me Thornburgh. I was convinced then, and I am convinced
now, that they are quality people who we should be very, very proud to have in our
community.
Since Kameron resides in Central Oregon, I've had many occasions to talk with
him concerning questions on the Thornburgh property. And at all times he has
been honest, truthful and straightforward in his discussions. One of my friends and
clients, Rick Borel, mentioned right after I met Kameron that he was also
impressed with Kameron's business findings and dealings. I asked Rick to recap
some of his thoughts for me in a letter. If I may, I'd like to read it.
"Dick,
I dealt with Kameron DeLashmutt a little less than a year ago concerning some
water rights. I had about fifteen acres of water rights that I wanted to sell, and I
was given a Realtor's name to talk to, who is representing Kameron. There were,
of course, papers to fill out and a process to go through with Central Oregon
Irrigation District, that all took time. Unfortunately we had a quick closing on the
sale of the property on which the water rights resided, so there was not time to go
through the formal process. I talked to Kameron personally. What a joy to deal
with someone who could immediately see our problem and simply trusted us to
turn the water rights over to him, which happened at closing, while he wrote us a
check for the full amount. He trusted us and we trusted him. And everything
turned out well for both of us. He is certainly the type of person that I would want
to do business with again."
And I happen to like the saying that says,
hear what you are saying." Thank you.
"What you are speaks so loudly, I cannot
DALY:
Sharon Gambrel is on deck.
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Tuesday, December 20, 2005 Page 24 of 118 Pages
STEVE JOHNSON:
Steve Johnson, Manager, Central Oregon Irrigation District. I sent the
Commissioners a letter via e-mail yesterday, and copies were sent via U.S. Mail,
and I have hand copies here, along with an application submitted to Central
Oregon Irrigation District in compliance with our groundwater patron policy for
the Commissioners as well.
LUKE:
We have the letter, but you might want to give that to staff (a copy is attached
marked as Exhibit D)
JOHNSON:
I am here this morning to speak adverse to the decision rendered by the Hearings
Officer, and not here specifically to endorse the Thornburgh Resort. But the
concern with the precedent established by the Hearings Officer's decision, that the
development has to show up with all their water on the first day, even though it is a
multi-year project, I believe is not consistent policy with Oregon water law or the
type of public policy we want to have in our basin.
The need for the water is over time, and in this case the need may be in excess of
over five years. There are unintended consequences of a decision like this, and it
creates a resource artificial constriction, and it creates a snowball effect. The
snowball effect has to deal with the water market and the prices for the water. If I
am required to show up with 500 acres of water right today, as the applicant has
already mentioned to you that they have done, that creates artificial pressure on the
water market.
What we have now with the mitigation program is that surface water rights have to
be retired when ground water rights need to be perfected. Oregon water statute,
Oregon Administrative Rule, allows that to be done in stages over time. It does not
have to all be done on the first day of the water well or combination of wells. So
the effect on the price drives that up, which negatively impacts farmers, and also
has created an area where people are intending to buy water, not to use it but just to
resell it. So, as my letter states to you in greater detail, involved with a number of
entities, cities, the Deschutes River Conservancy, as well as other irrigation
districts on trying to water plan and also create a stable market as we go through a
changing County.
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Tuesday, December 20, 2005 Page 25 of 118 Pages
Other states actually have had to deal with this issue, and so far Oregon doesn't
have any statute for anti-speculation. Colorado specifically has a good model.
I will close. At the tail end of my letter, I want to draw your attention to the fact
that our District, Central Oregon Irrigation District, like the County, wants what is
best for the public. This precedent is not in anyone's interest, artificially hikes
water prices for municipalities, farmers and even the environmental interests that
benefit the river and fish, and constrain supply without need. We ask you, as
leaders of the County, review and revise this portion of the decision. In doing so,
you will benefit all parties and establish a precedent for the future of land use in
the County that works with farmers and cities, not against them. Thank you.
LUKE:
Steve, you are suggesting then that sufficient water rights be a condition of
approval, but they would phase them in as they need them and not have them all at
once. That way, it takes a certain amount of water to get your head, your water
down to your last customer. If three or four people have sold all of their water
rights in between, you have to take some time to adjust for those kinds of things.
JOHNSON:
Right. What we have been establishing, and appreciate working with this
applicant, is on an as-needed basis as you mentioned. If we create the acquisition
of water to be removed out of the rotations or out of the laterals or ditches, it can
create operational issues for an irrigation district. Now, when there are willing
sellers and willing buyers in a market, we have nothing against that as long as the
District's interests are protected and the fellow patrons receive their water. As
long as it is on an as-needed - meaning for next year and the year thereafter - as
Oregon Administrative Rule allows with mitigation, which is groundwater, you
phase that in. So, don't require that they have to go out and buy all 500 the first
day of the project, which is basically water demand, in this case, for over ten years.
It creates the impression to other developers that they have to go out and secure
that water now if they intend to have a project in the future, or if they are even
thinking about doing one in the future. They are going to go out and acquire that
water. We've seen that actually take place.
LUKE:
What has happened to the price of water because of things like this?
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JOHNSON:
Two years ago, when I became manager at Central Oregon Irrigation District, the
price of an acre of water right on what we call our Pilot Butte canal, was $400.
Transactions now are in excess of $1,500 per acre. On our Central Oregon canal,
the price had already been relatively expensive, in the $2,000-$2,500 range; that
price is still holding. But we have seen not quite a 300% increase in the most
available water, which is on the Pilot Butte.
DALY:
I have a question. You just heard testimony that the Thornburgh Resort has
acquired all of the needed credits by acquiring some recent water rights from Rex
Barber. What happens to that water now? If they have purchased or acquired the
credits already, does that water go into a bank and not be used until it is needed, or
can they continue to utilize it on the farm.
JOHNSON:
Well, there are several paths to be taken. Number one is, those are perfected water
rights that Rex has. He has beneficially used them. So they are eligible for
transfer. If the need is not immediate, you can maintain beneficial use by officially
in-streaming them temporarily in the river. That's a program that the DRC has had
out for several years. So it guarantees the viability of the water right to in-stream.
Now, as it is needed for mitigation, and official transfer application is taken for
some of that water right to the Oregon Water Resource Department, when it is then
a mitigation project for the wells that they have. They are allowed to turn those
wells on when it is perfected. Did I answer your question?
DALY:
Well, I guess, but I am still a little bit confused. If the water rights have been sold
or transferred now, does that mean they either go into a water bank and can no
longer be used on the farm?
JOHNSON:
I believe I am correct. Until the transfer application is final ordered, those water
rights are still appurtenant to that land that Rex Barber owns, or any other water
right under the purchase agreements that have been submitted in an application.
They can still be used for irrigation on that appurtenant land in the meantime, or
put beneficially in stream until they are officially transferred for ground water
right.
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DALY:
Even though it may be five years from now, or ten.
JOHNSON:
That's correct. In fact, that is a policy that COI recommends for groundwater
applicants.
CRAGHEAD:
Mr. Chair, I believe the applicant testified that they have an option to purchase
them from Mr. Barber. I don't believe it was actually having purchased the credits.
LUKE:
Martha is nodding her head yes.
DALY:
Okay, if that's the case, that kind of clears it up then. The option is there sometime
in the future.
JOHNSON:
Per the terms of whatever that option states, I would assume.
CRAGHEAD:
And, Mr. Chair, if I may clarify that Legal Counsel's office has interpreted the
Hearings Officer's decision not to necessarily require all of the water rights. She
denied it on the basis that she felt the applicant did not show it is feasible to
acquire all of the water rights.
DALY:
Okay. Sharon. And Ted - or Todd - Heisler.
SHARON GAMBREL:
My name is Sharon Gambrel, and I've lived in Central Oregon since 1952, so I
have seen lots of progress, lots of changes. And I just wanted to speak on behalf of
the Thornburgh's. I have known them for forty-some years, four generations.
When they first moved here they had to go to town in a buckboard, pulled by a
horse, so they have seen lots of progress. And they have abided by all the rules to
get where they are at, and they tell me there were lots of them.
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Tuesday, December 20, 2005 Page 28 of 118 Pages
They are the most honest people I have ever met. Their word is solid. They have
been hard, hard workers, every one of them has worked really hard to get where
they are at. Kam wants to dedicate the resort to his grandparents, which I think is a
wonderful honor for them. They have been very good friends of mine over the
years. I know there are people in here who are opposed to this resort, and some of
them have other interests. I'm not going to mention any names, but I know that
some of them are involved with Pronghorn -
LUKE:
We would really appreciate it if you wouldn't go there. Let's just stay on the
positive or negative aspects of the resort, not the personalities. Thank you.
GAMBREL:
Thank you. I'm done. I am vice president of Cimarron City Water Company and
Deschutes and Crook counties have done one of the best jobs in the State on our
water resources. And we do have good water resources in Deschutes County. If
anyone is interested, they can go down and look at the master plan. Because they
have really done a wonderful job.
DALY:
Thank you. Tom Pickell is on deck.
TODD HEISLER:
My name is Todd Heilser, and I'm the Executive Director of the Deschutes River
Conservancy. I want to make it clear up front that my organization is neither for
nor against this resort. But we feel compelled to testify this morning because of
the unintended consequences of the marketplace, the comments you have already
heard from Steve Johnson.
I don't want to repeat his testimony, but maybe give you a couple of other things to
think about along those lines. First, just let me tell you that the Deschutes River
Conservancy is a not for profit organization dedicated to restoring stream flow and
improving water quality in the basin. We do it through conserving water, leasing
water and acquiring water, which is pertinent to this testimony. We believe we
live in a desert and we should all be into water conservation. We would like to see
the County adopt practices that would create strong incentives for water
conservation on all new developments, including this one, and all future
developments.
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But pertinent to this discussion, the other important method for improving stream
flow is this concept of water banking. That is all about acquiring or leasing water
to transfer, either temporarily or permanently, in stream. As you just heard, when
you transfer water right permanently in stream, you can get credits for mitigation
to get a groundwater permit. Or, you can not go that route at all. You can retire
that water right for what we call pure restoration. We are in the business to see the
middle Deschutes River, which is virtually devoid of water from Bend all the way
to Lake Billy Chinook in mid-summer, get restored, and many other reaches, get
restored. It gets restored by both of those practices, mitigation and restoration.
Our concern is that if we insist that all developers acquire or secure all of the water
they need for their developments that may be ten or twenty years in the future that
we are going to create this artificial demand that Steve Johnson referred to in his
testimony. We are going to drive up the price of water. It will be very difficult for
organizations like ours to compete with developers who - let's face it - water is
going to be a relatively small part of their development in terms of cost, and they
are going to be willing to pay a lot more for water than we are, along with others
who are interested in restoring the Deschutes River.
So, we are an official state-chartered groundwater mitigation bank. That was set
up to actually provide some liquidity in the marketplace. As you know, it is not an
easy thing to retire water rights. Irrigation practices have been going on for 120
years. So we naturally have a constrained supply. But what we'll see is fueling
demand on a constrained supply and price speculation will go out of sight. That's
going to hurt our organization, and will frankly hurt small developers, cities, and
anybody else who needs to perfect a groundwater right. Of course, our interest is
in retiring those rights and seeing the stream flow restored in the Deschutes River.
I would just like to say that we would hope that you would not institute this
practice, and would use things like the groundwater mitigation bank, which starts
potential customers in on leased water. We have temporary credit that we issue
that are backed on leases - they aren't permanent - and that our idea was that you
can start in with a few credits, you can get what you need today, and we can
acquire in an orderly process and in an orderly marketplace, in cooperation with
the irrigation districts, we can provide a consistent and reasonably priced supply of
water over time for all the needs. We have come together collaboratively with the
tribes, the irrigation districts, the cities and the Deschutes River Conservancy to
figure out how to meet all of the needs, not just some of them. In order to do that,
we have to have a facility to do that. And that is this water bank that we are all
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Tuesday, December 20, 2005 Page 30 of 118 Pages
working on together. We are actually all partners in an alliance called the
Deschutes Water Alliance. This is a nascent marketplace and a nascent bank and
facility. What we are very concerned about is that kind of ruling by the Hearings
Officer will really upset the apple cart. Before we really get this thing established,
and we demonstrate how it can work and how it can meet all of the needs,
including the Deschutes River, we might be very well undermined. Thank you
very much. I have some written testimony I'd like to submit for the record (a copy
is attached marked as Exhibit E.) I appreciate being able to testify before you
today.
LUKE:
For the record, I am on the Upper Deschutes Watershed Council. We have formed
a working agreement with your organization. It's a good agreement, I think. I just
wanted to put that on the record.
Again, you are not talking about this destination resort in and of itself; you are
talking about how water rights and how the transfer of water rights should be
handled when land use applications come before us. You are more of a generalist
like Steve was on how water should be handled.
HEISLER:
It's the policy of the County forcing the developer to acquire all of their water up
front which creates the artificial demand in the marketplace. If you tell them they
have to go out and get 400 or 500 acres, if every single developer is out running for
that water, the cities of Redmond and Bend, which are the fastest growing in the
State, those of us who are into conservation and want to restore the stream flow,
we are all out in a relatively chaotic situation, trying to grab water wherever we
can get it. It's going to not be a good scenario. So, it's really that policy that we
are concerned about.
LUKE:
My father-in-law was on the end of a COI ditch. The person at the end gets
whatever is left over. The problem as I see it, from my personal experience, is not
only do you have people going out and speculating, it really starts to interfere with
the ditch companies' ability to deliver water to their customers if they are pulling
enough water rights out. The delivery system no longer functions properly. They
may not be able to get the water to the people who have it coming.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 31 of 118 Pages
HEISLER:
That's a potential problem. But we mitigate that through piping. If you pipe the
canals you conserve a lot of water, and you enable yourself to move water in and
out of the system as you need it.
CLARNO:
Todd, that was a very good presentation. And as a member of the Deschutes River
Conservancy Board, I appreciate your testimony today. I just wanted to state that
for the record.
DALY:
Thank you. Next person is Tom Pickell, and the person on deck is Marty Roca, I
believe.
TOM PICKELL:
My name is Tom Pickell. I'm a principal in The Mountain Group, a management
consulting firm with an office in Bend at 142 NW Hawthorne Avenue, and other
offices in the northwest.
Our experience over the years has been from local, national and international
companies. We work with start-ups, we've done turnarounds, we work with multi-
national companies doing large multi-billion dollar financings. That's our
background. As with any company, operation or project, it is really the quality of
the management team that really leads its success. In looking at the team that
Thornburgh Resort Company LLC has put together, we find it to be outstanding,
partly because they have the right players in the right places. Mr. Chapman's
background in golf and resort development is an excellent background with lots of
successes, and he brings to the table the experience that he has in creating and
helping to develop the vision of this project. I have known Mr. DeLashmutt for a
number of years and have worked on a consulting basis with him on some of his
other projects. I am intimately involved in his success in the development of his
other projects that he has had here locally, real estate development, and have found
Kam to be your quintessential entrepreneur. He is very honest, he has probably
one of the highest energy levels I've ever seen, and I have enjoyed working with
him over the years.
Also speaking to that kind of management team, if you will, will be the
development team that Mr. Chapman and Mr. DeLashmutt have put together. I
don't know if the Commissioners have had an opportunity to review that yet, but it
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Tuesday, December 20, 2005 Page 32 of 118 Pages
is like a who's who of golf course and resort development. Whether it is golf
course designers, golf course construction, landscape designers, everybody up and
down the line; the construction; they have all done award-winning projects, not
only in the northwest but throughout the world. This is an excellent team. And I
think that this is a team that can make this project something that Central Oregon
can be really proud of.
I would also like to talk about the financial feasibility. We have been working on a
development model, which is very extensive and elaborate, to ensure that this
project will be able to meet the criteria for financial feasibility and profitability for
Thornburgh Resort.
LUKE:
Do you work for the LLC?
PICKELL:
We have been retained by the LLC.
LUKE:
You're the applicant.
PICKELL:
No, we're not an applicant.
LUKE:
Well, excuse me, I would think that this time should go against the applicant, if
they are going to have each one of their people that they have hired come up here
and testify, that to me is part of the applicants' presentation.
(Applause from audience)
PICKELL:
I was not aware that we were not allowed to do this. I mean, I have personal
experience as well. I apologize.
CRAGHEAD:
It's for the Board to decide on how far removed from the applicant you want to
consider them to be.
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LUKE:
I think the applicant was given a certain amount of time. They have brought staff
here for this, and we are free to ask their staff questions, but if we are going to
have people who have a financial interest in this speaking who are part of the
applicants' team, I think that should go against their time. I don't think his time
should go against them because we just brought this up. But if this happens again,
I want it to go against the applicants' time.
PICKELL:
I was not made aware at the time you announced the sign-up sheets.
DALY:
And you are correct, we did not specify that. Commissioner Clarno, do you have a
concern about this.
CLARNO:
I do have a concern, but if they did not realize this at the time they signed up, I
certainly think if anyone else is signed up who is associated with the applicants,
they should not take up their time.
DALY:
We have two Commissioners who are concerned about possibly using the
applicants' time. I guess I would ask that these other proponents here - now, are
you concerned about people who are actually working for the applicants, or may
have a financial interest?
LUKE:
Not financial interest, but if they are a part of the team, on the record he said he is
under contract with the applicant, to me that is no different than anyone else who is
sitting in the front row here.
(Applause from the audience)
LUKE:
Please don't do that.
DALY:
I guess my question would be, the remaining proponents here that are listed, Marty
Roca - are you with them?
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ROCA:
I'm with Umpqua Bank.
DALY:
So you are involved with the financing of the project. We have a letter. I believe
we had a question about the viability of the project. Isn't that one of the things we
need to concern ourselves with, the financial viability of the corporation?
CRAGHEAD:
That is evidence that you asked for, and evidence was presented by the applicants
during their time.
DALY:
So, if Mr. Roca testifies as one of the financiers of the project, is that applicant
time?
CRAGHEAD:
If the Board so chooses to consider it that way. Personally, I don't see the
difference between either one of these gentlemen as far as them both being part of
the project.
DALY:
Okay. Greg Taylor. I guess as I call you up here, the first thing you need to do is
identify your interest in the project.
LUKE:
I just want to point out that Umpqua Bank is a very nice bank, even though my
wife works for Columbia River Bank. We do have your letter in the record. We
appreciate you coming forward. It was one of the criteria that the Hearings Officer
talked about. You have it all in the letter. If there is anything you heard today that
you want to add to the record, it is entirely open for the next seven days for written
stuff. You may put things in the written record if you believe something else needs
to be in it. Thank you.
DALY:
Okay, as I call your name and you come up, would you please state if you have an
interest as far as a contract with the applicants, or a financial interest or something.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 35 of 118 Pages
Marty Roca is the one who just left, right? Okay, Greg Taylor, would you come
forward, please. And Lee Kearney is on deck.
GREG TAYLOR:
I am Greg Taylor, and I'm with Westside Church. I live at 37159 Tree Farm Road
in Springfield, Oregon. I'm simply here to...
LUKE:
You are with the Westside Church here in Bend, but you live in Springfield.
TAYLOR:
That's my mailing address. I live here in town. I'm here just to represent the
Westside Church and to let you know that I have enjoyed the privilege of having a
relationship with Kameron. I have really enjoyed his vision and desire for
philanthropic purposes, not only locally but in various places around the world.
And I think that is representative of his character, his desire to be someone who
serves the community. I think that is critical in this project, and just wanted to be a
representative to state that on record.
DALY:
Thank you. Dick Carpenter is on deck..
LEE KEARNEY:
I am Lee Kearney, a resident of Vancouver, Washington, 7611 SE Evergreen
Highway. I've been a second homeowner out at Black Butte Ranch for over
twenty years and have seen that development grow over an extended period of
time. I think the quality of that development has been continually praised in this
area, and I would think that Thornburgh Resort has more open space than Black
Butte Ranch has. I have had the privilege also of visiting the development that Mr.
Chapman is associated with in California, and it is first class. I think the quality
that he represents is going to be an asset to this area. I would urge the
Commissioners to approve this application.
DALY:
Thank you. Dick Carpenter is up. Gary McCabe is on deck.
DICK CARPENTER:
I need to tell you up front that I am one of the twenty-three investors and founders
of Thornburgh Ranch, but my testimony here today is not in regard to that. It is in
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 36 of 118 Pages
regard to the financial stability of this operation and the character of the people in
the operation. May I speak?
CRAGHEAD:
This is for the Commissioners to decide. Again, you are an investor and the
Commissioners have disqualified other speakers because they are investors in the
project.
CARPENTER:
I am not a member of the LLC. I have no financial interest in the equity of the
property. I'd be happy to explain to you what a founder is, because I am a founder
of five different golf resorts.
LUKE:
It might be a lot easier if you submitted your testimony in writing.
CARPENTER:
I'd be happy to do that. As I said, I don't know if you understand what a founder
of one of these resorts is.
CRAGHEAD:
I might clarify that submission of written testimony after today is for rebuttal
arguments or rebuttal evidence only.
DALY:
I would suggest that he may clarify some of the issues that I really have an interest
in, as far as investors in the project. I certainly don't mind hearing it.
CRAGHEAD:
If the Commissioners wish to ask a question of Mr. Carpenter, the Commissioners'
question time is not included as part of the applicants' time.
CLARNO:
Mr. Carpenter, why don't you explain the difference between a founder and an
investor.
CARPENTER:
I am a founder in Pronghorn, I was the first founder. A founder in the beginning
gives the golf resort - and everyone is a little bit different, the amount of money -
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 37 of 118 Pages
but I know that the twenty-three founders in the Thornburgh Ranch have given
$11.5 million total towards this operation. And I read in the paper and I heard here
earlier today that there is some question about what financial capability these men
have. I'm telling you, in addition to the bank letters that you have testimony on,
that I know personally that these twenty-three people have given $11.5 million.
My testimony, I was going to say up front, of course, but my interest is not
financially entirely. There are a couple of other things I wanted to address. That is
the character of David Chapman, who I've know for some time...
CRAGHEAD:
I'm sorry, Mr. Carpenter, but you need to directly answer the question from
Commissioner Clarno about what the difference is between a founder and an
investor.
CARPENTER:
I don't know if I can answer that. They only allow so many founders, and they cut
it off. If they have investors after that, I don't know.
LUKE:
If I remember, you've made a pledge...
CARPENTER:
I haven't made a pledge; I've given them the money. All of us have given them
the money.
LUKE:
As I remember Pronghorn, a certain number of people put money up for the
privilege of buying property later, being able to play golf there, and those kinds of
things. Is that pretty much what has happened here?
CARPENTER:
Yes. That's where the up-front money comes from. I happen to belong to a
number of other golf resorts, not as a founder, but I think every one I know of, and
I know quite a few, have founders. It's where the front money comes from, in
addition to the money from the people. There are forty founders at Pronghorn.
They put in $350,000. Now, when we put the money in, I put my money in four
years ago and there was nothing out there. What I did anyway, and I'm sure some
of the other founders did, we did an investigation of the people that are involved in
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 38 of 118 Pages
it, and believed they had the wherewithal and knowledge to produce what they said
they were going to produce.
CRAGHEAD:
Again, I don't know if this goes to the actual question.
CLARNO;
Mr. Carpenter, I really appreciate you answering my question. I think what we are
bordering on here is whether we can allow you to testify any further. Thank you
very much.
GARY MCCABE:
(Off the microphone) I have nothing to add.
DALY:
Susan McCabe? She's not answering either. I've got Chuck Koon here.
CHUCK KOON:
I am Chuck Koon, I am at 6860 Thunderbird Court, in Eagles Crest Resort. I am a
builder there and a resident there for about 13 years. I have known the principle
applicant, Mr. DeLashmutt for about the last 8 or 9 years. I have known another
member of the family for about that same amount of time. I can certainly vouch
for that family, that individual, Kameron has been a competitor and looks like in
the further a competitor again. I don't believe that that resort will affect the quality
of the lifestyle that we enjoy at Eagle Crest or many of our other homeowners that
we have built for there. That is my opinion. I believe in the feasibility of the
project.
As a builder/developer of course the location is primary and I don't think we need
to discuss the quality of the location. I am sure that there are many people that
would love to live and have a lifestyle there in that development. The financial
part of the needs of a successful development have been answered and addressed, I
believe sufficiently. Then you look at the team and the people that are going to put
this development together and you question yourself as a fellow builder/developer
can they do it.
I am a life director for the National Association of Homebuilders, I am a voting
member of the International Council, Code Council, that this State operates under.
I can tell you that there is a network of my peers that if there is a week link in a
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 39 of 118 Pages
team, if there is a weak spot, if there is a character involved, an individual involved
that would be a detriment or a deficiency in the planning and in the group that is
involved, let me tell you, it would surface pretty fast. We have a network of
people. I am involved in builder groups throughout the United States that are
aware of this project and they know the people involved. I have not yet heard one
negative comment about any of the individuals, any of the consultants, or the
feasibility or the viability of the project. So, I certainly endorse what they are
doing. I expect them to be a good competitor and I do not have a financial interest
in the property. But if they would allow me, I would certainly be interested
because I believe that it is worthwhile. So, thank you very much.
DALY:
Thank you. Rex Barber Jr., and Art Willett on deck.
REX BARBER, JR:
Good morning Commissioner's. For the record, I am Rex Barber Jr., President of
Big Falls Ranch Company. The address is 70470 NW Lower Bridge Way, in
Terrebonne. I won't take up any of your time just am here to confirm the existence
of the agreement between Big Falls Ranch and Thornburgh's regarding the
adequacy of their water supply and would be open to any questions that you have.
DALY: Any Questions? None? (No one responded.) Art Willet, is he here? (No
one responded.) Are there any other persons out there who are proponents who
want to testify and haven't signed up? (No response) I think we will take about a
5 to 10 minute break before we start on the next testimony.
LUKE: Who will be the first ones up?
DALY: Rob Reavill and Dave Jewett will be the first two up.
Break
DALY: It is now time for the opponent's testimony. I just want to caution
everyone that - please do not repeat someone else's testimony. If someone gets up
and testifies to a certain issue, there is no sense of rehashing the same testimony
over and over. I would appreciate that you would come up and say that I agree
with the former person who testified. That will speed things up a little bit and we
will get through, there is a lot of folks that want to testify.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 40 of 118 Pages
Also I would appreciate it if we don't have any outbursts or clapping, or any thing
like that. That is kind of unprofessional and we need to try and keep this as
professional as we can. We will give everybody an opportunity to testify.
LAURIE CRAGHEAD:
Mr. Chairman, I would also add that we have left another sign up sheet over on the
side here for those of you who came in late and did not hear that we have more
signups for the opponents there. I also want to reemphasize that although this is a
de novo hearing, we are asking people if they could stay focused on the 4 issues
that were in the announcement for the notice of this hearing and an order for this
hearing.
LUKE:
I would like to point out that, again, the entire record is a part of this hearing. If
you testified previously, and I know 5 minutes is not very much time, if you
testified previously, you might want to refer to that testimony and what date it was
so we would have an opportunity to look back and maybe help develop your points
that you are trying to make. That is something you might want to consider doing
also.
DALY:
Ok, it is Rob Reavill and Dave Jewett is on deck.
ROB REAVILL:
My name is Rob Reavill, I live at 1468 NW Kingston Avenue in Bend. I thank
you for listening to us. I urge you to reject this application for the following
reasons:
The ruling by the County Hearings Officer, especially those on future water needs
for this huge development, is one of the reasons. I think hearing some of this
testimony that we need comprehensive long range regional planning for water,
increased traffic, sewer needs and management, the chewing up of more natural
land in the area, fire and safety problems, pollution from added vehicles,
pesticides, and insecticides, and everything to do with golf courses. Aside from
land use problems, please address the social costs. As the proponents for such
destination resorts that I have heard, use a boost to the economy in their arguments.
It seems fair that I can ask you to consider the other side of this. The myth that
these developments will add jobs and help the local economy should be
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 41 of 118 Pages
transparent. We all know that labor is being imported, both for construction work
and service jobs. The reasons are that this labor is cheap. Not that labor is not
locally available. With imported labor come many social problems and costs that
the permanent communities have to bear, moreover, resort communities are
transient, even with the so called permanent homes. They become small towns but
they are phony towns. No one really has a state in a true community as do the
residents in the surrounding towns and cities who will have to bear the brunt of
extra and invisible financial burdens.
A loss of natural surroundings and a threat to the water supply, which with global
warming is not infinite in this area. Therefore I ask you to put, not the money
interest, but the ordinary citizens in Deschutes County first in ruling against this
resort. Our economy will not suffer if these resorts are not developed (a copy is
attached marked as Exhibit F.)
I have a testimony against the resort from a neighbor, Barbara Calsm, who could
not get here.
DALY:
Ok, thank you. The next person on deck would be Paul Dewey.
DAVE JEWETT:
Good morning Commissioner's. My name is Dave Jewett, I live at 66290 Cline
Falls Road. I came to visit with you this morning on my concerns on the process
that we are going through. I am very pleased with what I have seen this morning
and the thoroughness that is happening with this hearing. My concerns really go
back to a need and up to this point a lack of due diligence by the County on the
process. In the division staff report which was dated July 14t", I can quote that the
staff says that they have not, as they usually do, direct the application burden of
proof to glean the relevant applicable criteria for the overall document. Instead the
staff has restated the applicants burden or proof and only added clarification of
confirmation where needed. I certainly read that at that point in time, of a lack of
due diligence on this project. I clearly hope that with the complexities of the
project and with the Thornburgh group fundamentally refuting what the Hearings
Officer said and the Hearings Officer really not present to make her points better
known, the burden is going to fall to the Commissioners to do the appropriate due
diligence to make sure all the facts are known and that a correct decision is made
in this process.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 42 of 118 Pages
I think it is important to know that there are a large group of people who are
greatly opposed to this resort. It is only through the due diligence process that we
are going to be able to get clear and concise answers so you folks can make the
ultimate decision. As I understand, part of the process is that County will require
the developers, as they have all developers, to post bonds. Without the proper due
diligence to go forward in a project of an estimated $160,000,000.00 million
dollars, and I believe it is stated as the largest to date destination resort in the State
of Oregon. Without having the proper background and knowledge to know if all
the things you have heard to date are accurate, if the information is accurate, I
don't think that we can rely on one side's consultants only to present the data that
is available that the County needs to do your due diligence. You need to determine
the accuracy of the information that has come forward. So, that hopefully, you in
fact will support the denial that was put forth by the Hearings Officer.
Last comment that I would make relative to the water issue. I testified in the
August 17th hearing, the one that was lost due to recording. I have brought some
statements that I would like to put into the record (a copy is attached marked as
Exhibit G) But, what I am hearing on water is that we have this boundless reserve
of water and that we can use this pretty much as we see fit today. Let me tell you
that's a myth. Let me tell you as one who has spent 35 to 40 years in the
petroleum business. Thirty-five years ago, I sat in rooms just like this listening to
the fact that crude oil, at $3.00 per barrel was boundless and that we did not have
to worry about that product being commoditized. Today everyone of us knows
that crude is $58.58 a barrel. That is what happens when your product becomes
commoditized. That is the direction that your water is going if you do not have a
long range plan to use if effectively.
Again, with these items, I appreciate the opportunity to speak to you, I appreciate
what looks to be going forward on your due diligence, it is critical to a project of
this size. Thank you very much, I hope you look forward to denying this
application.
LUKE: Let us make one point. Pronghorn, actually, could not bond and so they
put up cash. So, not all the resorts have put up bonds.
JEWETT:
There is nothing wrong with cash and if that proves to be the way to go and you
get a 100% bonding value, cash works.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 43 of 118 Pages
DALY:
Thank you sir, Paul is up. Ted Kenneth, or something like that?
PAUL DEWEY:
Thank you Commissioner, Paul Dewey, attorney for Nunzie Gould. I am also
submitting letters today for a Mary Putnam, Mel Stout, and Furgeson Associates
folks who could not stay or be here today. I am submitting nine letters today. I
decided to break down the critical issues into two to three page letters to try to
focus in on some of the key issues. I would like to briefly address those.
One is getting back to basics of what is a destination resort. Everyone has been
talking as if this is one. I think the Hearings Officer was quite clear that in many
fundamental respects, this is not one. She focused on the overnight housing and
open space. If you look at the map over there, you have got really two different
resorts here. By all evidence in the record, as the Hearings Officer clearly pointed
out, the southern one, the one they are going to develop first, the Tribute, is
essentially a private residential community. Most of the so called destination
resort attributes, that is a golf course that would be available to the public or
visitors or a hotel that is located at the Pinnacle, not at the Tribute.
So, you have to look at this very carefully, whether or not both aspects to this
resort, there are actually two resorts that meet the criteria. In that regard, only the
Tribute meets the fundamental criteria of being directly connected with an arterial
or collector road. The Pinnacle out there is simply isolated and even if it gets BLM
access it is still not going to be directly connected with an arterial or a collector.
Speaking of roads, my first two letters address that issue. The primary concern is
the fundamental underestimation of traffic impacts and I want to give you just a
comparison between the Thornburgh numbers and what Kettleson & Associates
did for Eagle Crest. Kettleson & Associates is not working for us. I am just
pointing out the discrepancies. At that key intersection of Cook Avenue in Tumalo
and Hwy 20, where people try to make that left hand turn, it is a failing
intersection. It has been a failing intersection for years. In 1999 Kettleson
identified 145 left turns there. The Thornburgh expert in 2004 says there were
119, as if the traffic was actually decreasing over five years. Kettleson anticipated
that in 2009 that 230 cars would be making left had turns there and the Thornburgh
experts said only 141.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 44 of 118 Pages
LUKE:
Left hand turns to go where?
DEWEY:
From Cook Avenue onto Hwy 20 as you are going to Bend. We give a lot of other
examples of the underestimation of impacts. There are a lot of inconsistencies,
even in the use of the golf courses. Some of the materials suggest that, like the
Tribute, the golf courses are not going to be available to visitors or to the public
but only to residents and their guests. The Pinnacle would only be available to
visitors and not to the public. And yet, elsewhere in the application, it is suggested
that it is going to be more open to the public. The problem here is that the traffic
expert assumes the former, as if this is going to be a really closed in, really not a
resort again, but a private community. So estimated traffic impacts is being
relatively small. There just is not going to be that much of an impact. The
Ferguson & Associates letter goes into that in a little more detail.
We are also addressing in our 4th letter, financial resources and assurance that has
been a topic today. We are attaching the expert witness report of Ed Whitelaw of
Eco Northwest as to what really should constitute adequate financial assurance.
That will be attached to my letters (copies attached marked as Exhibit H.)
Finally, on water, there has been quite a discussion today and I was very glad that
Laurie Craghead corrected it. The assumption is that you have to show up with all
the water. The Hearings Officer said it is a matter of feasibility, are the mitigation
credits out there. The reason why that is an issue is that so many entities are trying
to get water rights and having to show mitigation. The applicant should be
required to provide that.
I see that my time is up so I will provide you with some gifts since this is the
Christmas season.
LUKE:
Can I ask you a question first?
DEWEY:
Absolutely!
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Tuesday, December 20, 2005 Page 45 of 118 Pages
LUKE:
One of the things the Hearings Officer addressed was the northern access. Do you
see that as important in the initial phase of the development or would you think
that maybe something we did like Pronghorn where that at a certain percentage of
build out there they were required to put the secondary access in.
DEWEY:
I think that given the Pinnacle is an isolated piece of land that it is absolutely
critical that they get that BLM permit before they apply for the master plan. This
is something that opponents are not just stating but the Hearings Officer as well as
County Staff. Frankly, I think Eagle Crest did that. Eagle Crest in fact had their
water rights all in order. That is such an isolated piece of land out there that access
is going to be critical and frankly we are going to be involved in the NEPA process
with the BLM. So, it should not be assumed that they are going to be getting what
they are asking for through BLM. We believe it is contrary to the recent
Management Plan that BLM has come out with. So we think the NEPA process
should be allowed to go its course before they are granted a permit by you.
LUKE:
Water is important in this area. I was on the House Natural Resources Committee
which dealt with water. Representative Norse, who is the Chair, set up the
Watershed Council. I sit on the Watershed Council. I like the mitigation process.
I think people really need to take a look at that, how they handle that. We have
had testimony from DRC and COID that if you require people to buy their water,
get their water mitigation up front before they even go through the application
process and stuff, it could really create some problems and considerably raise the
price substantially more than it is. Any comments on that particular philosophy?
This is project specific, but that is a bigger question. That is a bigger question on
anything that comes before us.
DEWEY:
I think the representatives from COID and DRC raise good issues. But, they are
not what the Hearings Officer related. I don't think that the Hearings Officer
required that they have acquired every bit of mitigation. They had to show that it
is feasible. All that they have shown today were temporary credits. What is
required are permanent credits. There is a lot of leasing going on out there but
there still is a very real issue as to whether they can achieve permanent mitigation
credits as opposed to temporary.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 46 of 118 Pages
LUKE:
How about the philosophy question of requiring someone to do that up front, to
have everything in hand before they move forward.
DEWEY:
I wish I was more of a student of water marketing to know. I am aware of a recent
offer, I think from Tumalo Irrigation District, that suggested that the market was
already skyrocketing. There is some talk today that if this if followed, then the
market is going to go haywire. Well, it already is going haywire. I am not sure
you can attribute it to... Any developer worth its salt is going to be locating water,
and that is the process they are doing. Frankly a lot of us are concerned about the
loss of irrigation and ag land and what that means to this County as development
takes up all agricultural water. That is a policy issue that I really look forward to
you all addressing at some point.
LUKE:
The applicant and the Hearings Officer brought up the overnight lodging, the two
to one. The applicant now is made their argument before us. Do you have any
thoughts on that.
DEWEY:
Yes. We would really like to see what they have submitted. I want to explain here
as Mr. Livingston said today, they have submitted some new material. There has
been an ever shifting number of units. One expert analyzed 350 single family
homes, one expert analyzed 1100 single family homes, and there was a constant
shift. Are we talking about 1000 single family homes, are we talking about 950
single family homes, we have been talking about condos, we have been talking
about cottages. It has never been really clear what exactly they are planning to do
here. They have said they want to be responsive to the market, so they want
flexibility in what they are doing.
The Hearings Officer quite appropriately said you have not pinned yourself down
to show that you do meet this two to one ratio for each phase and throughout the
development. If there is any confusion, it is the applicant's creation here, not the
Hearings Officers.
LUKE:
Thank you. Question to Legal Staff. Some of this is now. Do opponents get an
opportunity to rebut here at all?
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 47 of 118 Pages
LAURIE CRAGHEAD:
Yes, that is what this next seven (7) day period will be for. They can come in and
view the record and then submit any kind of rebuttal evidence and rebuttal
argument to that.
LUKE:
Are there any additional copies that the applicant has that we might be able to
make available to a few people today.
Applicant stated they did not but the information is on the website. Catherine
Morrow is saying no.
CRAGHEAD:
I do not know if staff has enough time to get them onto their website in order for
people to view it. They would probably at this point have to come in to the office
to view them because it takes an enormous amount of staff time to get those
scanned and onto the website.
LUKE:
I will make mine available too if staff would like an extra one. I would like to
have it back, of course.
DEWEY:
Thank you for mentioning that Commissioner because with the seven (7) days
including Christmas and Christmas Eve it is going to be difficult to respond to all
of that.
CRAGHEAD:
I have a few questions. I believe in your submittals, previously, you suggested that
this was two rural subdivisions as opposed to actual resorts. A couple of questions
on that. I think one was based on the fact that one of them is going to be closed
and only for the residents on the golf course, is that one of the issues?
DEWEY:
Yes.
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Tuesday, December 20, 2005 Page 48 of 118 Pages
CRAGHEAD:
Pronghorn did the same thing. They have one closed golf course that is only for
residents and one that is open for visitors only. I am just wondering how this one
is different than Pronghorn.
DEWEY:
That one is open. With the Tribute, apparently neither one is going to be open.
They are really independent properties. Pronghorn is a single entity. These are
two separate resorts. The only thing that connects them are two roads that go on
land that is not actually in the destination resort overlay zone. They are just local
roads, not County roads. They will be private roads for these peoples use.
CRAGHEAD:
I believe that Eagle Crest Phase 3 was separated from Eagle Crest, someone can
correct me during their rebuttal time if they want to. There is BLM separating in
between the original Eagle Crest and Phase 3. They got a permit to get a road over
to that Phase 3. How is that different again, than this? How is that not two
separate resorts as opposed to Eagle Crest?
DEWEY:
Good question. I don't think that anybody brought up the issue.
CRAGHEAD:
Ok.
DEWEY:
Again, they got the access before they got the permit.
CRAGHEAD:
I believe in past destination resort applications, rather than getting specifics what
all overnight lodging was going to be, there was a provision provided in the
CC&R's that required the two to one ratio as opposed to giving specifics exactly
where the overnight lodging would be or exactly how many numbers. Again, how
is that different from this application?
DEWEY:
To the extent that that is precedent. Frankly again, I don't know of any other resort
that has received this kind of scrutiny. I think a lot of these issues are being raised
for the first time. Frankly, it is a continuing problem of perception, that many of
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 49 of 118 Pages
the destination resorts, or the more recent ones that are being approved, are
destination resorts in name only. They are operating as residential communities
and there just is not the proof there that they are actually being used by visitors.
LUKE:
I would like to point out, that from my understanding, Pronghorn did not receive
this kind of scrutiny because the opponents and the applicant worked together and
there was not this kind of testimony against it. It is not our fault that we did not
scrutinize it as no one brought it up.
DEWEY:
Right.
DALY:
Commissioner Clarno do you have any questions?
CLARNO:
No, I do not.
DALY:
Thanks, Paul. Ted Keener and on deck is Susan Hart.
TED KEENER:
Ted Keener, I live on 65711 Twin Bridges Road in Tumalo since 1984. I am a
real-estate appraiser and have been the entire time. I gave each of you a 2 page
document (a copy is attached marked as Exhibit I) that I hope maybe you can
follow along with me. First, I just want to say on the seven (7) day appeal
process...
LUKE: Did you give one to staff?
KEENER:
No, I will when I get done. I need one in front of me. On the seven (7) day appeal
thing, I think you have the power to change that. I think rightfully or wrongfully
that we all have the perception that it is only seven (7) days right before Christmas
that it kind of stacks the deck against people that are trying to respond to, however
many pages...
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LUKE:
Actually we did not have the power to change that.
KEENER:
Ok, it is unfortunate, because it is awful poor timing. What I gave in front of you,
no one is trying to stop these folks in doing something with their land, what we are
trying to stop is the impact on all of us that live in the rural Tumalo area. Because
it will negatively impact us, value wise and quality of life wise.
As you can see the first page, I have just a rough value as an appraiser, what it is
worth right now, assuming they can develop it under EFU. Roughly under EFU
guidelines, if they can split all three of their seven lots into thirds, which I
understand you can do under EFU in a dry acreage, there value right now is
$14,000,000.00 million. I have an alternative I would like to through out at you,
and that is page two. Under the destination guidelines, rather than a resort of a
1,000 or so units and 6,000,000 gallons of water a day, and I am just going back to
a time when we used to compromise in this County, and this is just a compromise
proposal, that under the destination resort guidelines, they still set aside the 50%
and develop the other 50%, which is 990 acres into perhaps, 10 acre high end
ranchettes. The minimum value of those, and on paragraph two there is a
subdivision in Tumalo right now in 14 lots, 10 acres each, and those 10 acre lots
are selling for $400,000.00. Ninety-nine of those is $40,000,000.00 right now if it
was developed into 10 acre ranchettes. So, that is just an alternative that would not
impact those of us that live in Tumalo.
Let me just talk about the impact for just a moment. I have lived there for 20
years. Five years ago I did not hear any noise on Cline Falls Highway. I live a
quarter mile off of Cline Falls but I have talked with people who live a mile off of
Cline Falls. Now, in the summer when my window is open, at 6:30 in the morning
you start hearing cars. It goes for three hours during rush hour and the same thing
in the evening. You hear the traffic, because it is flat, there are no hills to block
that sound. I can tell you as an appraiser, when you are in a rural community and
you can hear traffic, it is going to diminish the desirability and the value of your
property relative to property that is outside of that. So, as quality as this resort may
be it is still going to negatively impact all of us that live there. That is why we are
opposing it.
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I can't emphasize that enough, that their gain, is our loss. It is going to negatively
impact all of us in the whole Tumalo basin, from a noise standpoint and a
congestion standpoint.
What I would like to ask, is if this should be approved, please consider possibly an
alternative as I have outlined here with ranchettes and you could still have an
equestrian center, a hotel if it requires two to one. You have 99 ten acre parcels
you could also have a hotel for 200 people, which would be two to one and that
impact without golf courses would just be huge on terms of the aquifer and terms
of the traffic. They still have the ability to make a lot of money under that
scenario. So, please consider that.
If we go ahead with that, please consider a bond. Anyone who has their water
level go down, we have 500 - 700 foot wells out there, if those water levels drop,
they should be forced to pay for that, say, for a 25 year period for a seven mile
radius. That aquifer is at least that large. A bond should be required to protect us
because no one really knows how much is in that aquifer.
My second point would be the traffic. Right now we often wait four cars deep to
get onto Hwy 20, right now, that as a result of the increase at Eagle Crest. Eagle
Crest is basically a whole live in community. They are going to work in Bend and
this community will not be any different. So, it is impacting us now, and that
should be required, that they do something with that such as an overpass or stop
sign prior to building, not after the fact. Thank you.
DALY:
Ok, thank you Mr. Keener, Susan Hart is up and Nunzie Gould is on deck..
CRAGHEAD:
Mr. Chair, may I pose another issue?
DALY:
Yes.
CRAGHEAD:
Given the fact that you cut back on who could speak on the applicants side
regarding the investors, given that Paul Dewey did testify on behalf of Ms. Gould,
whether or not that is considered double time for one of the parties.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 52 of 118 Pages
DALY:
I would think that it would be.
LUKE:
So, the witness is represented by counsel. So, your point is?
CRAGHEAD:
Whether or not one of the parties being able to testify twice because of legal
counsel presenting five minutes and the client also presenting five minutes.
DALY:
I believe you are correct. Any other comment?
LUKE:
How about the new Commissioner?
CLARNO:
I see it as a problem. Mr. Livingston testified for the Applicants and Mr. Dewey
testified for the Opponents. So, I see it as a problem.
DALY:
The rule fits both sides. Ms. Gould, you are up.
NUNZIE GOULD:
For the record, I would like to state my objections since this is a de novo hearing,
all parties should be entitled to time to speak.
CRAGHEAD:
Just to clarify the record, it is a de novo hearing, however, time limits were set for
each individual party and Ms. Gould did have the opportunity for presentation of
information through her legal counsel.
DALY:
Ok, that is the ruling we will make. We will proceed. The second person on deck
will be Darrel Pieper, I believe. Susan Hart is up. You may proceed, thank you.
SUSAN HART:
My name is Susan Hart, I live at 20175 Marsh Road...
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
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Having microphone difficulties. Adjustments being made.
SUSAN HART:
I am Susan Hart, I live at 20175 Marsh Road which is about one mile from the
southern entrance to the proposed resort. However, please do not mistake that
from my mailing address which is P.O. Box 87 in Bend. Anyway, I agree with the
last person that testified in all of those respects. I will try not to repeat myself. For
the record, I did testify on July 15th as well regarding many issues; traffic, water,
safety, change in rural life, and all of that kind of thing.
Today what I would like to start with is commending the process again, that I think
the Hearings Officer did a great job. She was very thorough, I think, and very
unbiased in her findings and I do not think there is anything in there ...I mean there
are areas where she said she felt they met the criteria and there were areas where
they did not meet the criteria is what a good hearings officer should be doing. I
guess that the evidence that was presented today by the resort proponents is new
evidence and had perhaps some of that been in that hearing, would of perhaps
affected, perhaps not, but perhaps affected the outcome. But to change what the
Hearings Officer... her decision based on new evidence heard today, I do not think
would be appropriate without going through the process again to do that.
I would like to make a comment also about the surface water and this has been
alluded to a little bit. What I would address a little more specifically and that is, if
you take 500 acres of irrigation water off of 500 acres of land that is irrigated, that
is going to have a profound ecological and economic effect that I think needs to be
taken into consideration. Secondly, in terms of the water, I had a bid for a well
that I was told by the well drillers that I would only need to go 300 feet. I did not
follow through on that at the time, which was about two years ago, and have now
requested that that be done. I have been told that because of the extraordinary
number of wells that have been drilled in that period of time, because of the
requirement by the irrigation districts that you can no longer use surface water for
domestic purposes, a number of wells have gone dry and that I am now required to
drill my well, instead of 300 feet, up to 800 feet. So this is a critical issue, it is an
expensive issue for those of us who live out there, and I think that there is a lot of
issues around the surface water that to me seems a little bit like Measure 37. The
laws may be good in and of themselves when you look at them in just a little tiny
piece but if you look at the long term effects, they can be profound.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
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Next thing I would like to address is... one of the things we were told here is that
we were allowed to comment about four particular issues. One of those was not
the character of the project proponents and that there was a fair amount of
testimony in that regard. My major concern is that when Mr. DeLashmutt was
asked the question as to whether there was any further investors, he specifically
said no and then a few minutes later we had someone testifying that the 23
shrouded in the word "founder" had plunked down 11.5 million dollars. Those are
investors, regardless of the semantics, and I think that that was not telling the truth,
the whole truth, and nothing but the truth.
I think the BLM issue has been adequately addressed so I won't mention that.
I would just like to ask you to support the ruling of the Hearings Officer who did
her job well, she went through the material and heard all of the testimony in detail.
I would urge you all, and encourage you to read every speck of the testimony and
listen to all of the tapes in all fairness to the many people who were not able to
come today because of the timing. Thank you.
LUKE:
May I ask you clarification of a question. You said you are going to need to drill
your well deeper because you can no longer use cisterns water for domestic use or
is that...
HART:
No, when I got a bid to drill the well, because I could no longer use the irrigation
water for domestic use, I was told 300 feet was all I had to go. The entire
community was affected by this requirement of having to find an alternative
source. Dozens of dozens, hundreds of people, have put in wells out there. As a
result other people whose wells were older and had not gone very deep, their wells
I was told by the well driller, have now gone dry. Had I done the well three years
ago, 300 feet would have been all he had suggested, and now he is recommending
800 feet because people's wells are drying up at the lower...
LUKE:
One thing I would like to comment on is this is a de novo hearing. When the
Commissioner's take an appeal, almost all of them have been de novo because
something has come up since the hearings officer's decision that may have caused
the hearings officer to make a different decision or the hearings officer, according
to the applicant, misinterpreted or according to the appellant, misinterpreted some
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 55 of 118 Pages
of the information they need to clarify on their records. This is not unusual. You
very seldom hear it on the record because those are not fun. We have done those
before and we usually don't do that. So, if we do call them up, it is because new
information needs to be added, one way or the other.
DALY:
Do you have any questions Commissioner Clarno?
CLARNO:
No, I do not.
DALY:
Thank you, Steve Munson is on deck. Up is Darrel Pieper.
DARREL PIEPER:
My name is Darrel Pieper, P.O. Box 2170, Sisters, Oregon. I just want to make
some specific comments in retrospect, almost small nits to the developer's
statements in some of their documents, primarily, rebuttal Response 1. Page 13 of
the Response 1 states, "erosion and dust will be controlled during construction by
minimizing impacts to existing vegetation". I would suggest that the lawyer who
wrote this didn't really know what he was talking about, he or she. Dust during
construction is caused by equipment or by wind over disturbed soil areas.
Minimizing impacts to vegetation is not an effective dust control. In another area
lawyers for the developers suggested using mulch as a dust control during
construction. Again, this is a high cost suggestion that would really not be
affective during construction. The lawyer's response really seems to apply more to
dust control after construction is finished. So they did not really, in my opinion,
respond to dust control during the development phase.
Again, on page 20 in the Response 1, and I quote "there are no important natural
features on the site, a few outcroppings and old growth Junipers are in no way
unusual or unique." Rather than taking a lawyers word on old growth Junipers, I
would suggest you go to the BLM documents. I was one of many volunteers
assisting BLM so, I know a little bit about it. The BLM Upper Deschutes Record
of Decision and Resource Management Plan dated September 2005, page 31, the
paragraph on old growth Juniper states, "old growth Western Juniper Woodlands
and the Pumice Sands of Central Oregon are unique in their age, size and extent."
The BLM goes on to say that the old growth Junipers in the area are up to 1600
years old. My personal view, this then qualifies them to both be unique and
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 56 of 118 Pages
unusual as opposed to the statement by the proponents. The applicants consultant
further tries to diminish the Juniper by limiting their age to 1000 years, thereby,
deleting at least 600 years of history for these trees.
Page 23 of Response 1 talks about traffic and Highway 20/Cook Avenue
intersection in Tumalo. Here the applicant's lawyers boldly state, "while the
proposed resort can be expected to make matters worse until highway
improvements are made by others, it will not result of levels of traffic inconsistent
with the functional classification or reduce the level of service of the facility."
They further explain that the LS is already inept, the lowest grade available, and
then site numerous legal cases that say they can not be penalized for making
matters worse. The only way that I see that you can not make matters worse for
traffic in Tumalo is to deny the application. Thank you.
LUKE:
Of course, Eagle Crest has already put money into the Tumalo fix. ODOT tried to
figure out what the percentage should be. There is a fund there that is going to
take a lot more than what is in that fund to fix the problem. A side note, when my
father-in-law got out of the service in WWII you had to earn some of your G. I.
benefits. Over near Sisters they were cutting Junipers and he said they were
sometimes as tall as the Pine Trees and they were solid. There are some really nice
Junipers also, not just the ones that we get used to around here sometimes. Thank
you for your testimony.
DALY:
Steve Munson is up, Karin O'Bannon is on deck. Go ahead Steve.
STEVE MUNSON:
Thank you Commissioners, I gave my address earlier. Commissioner Clarno, I
would like to welcome you to the Board.
CLARNO:
Thank you.
MUNSON:
Glad to see that happen. My first comment... I have about six... my first comment
is that this hearing is probably out of order in my opinion and in the opinion of
many others. Here's the reason, we do not have the record from the August 17t''
hearing. Many people testified and made many comments on the record, there
were many questions asked that are still unanswered by this developer. We need
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Tuesday, December 20, 2005 Page 57 of 118 Pages
some mechanism, I ask you again please, along with Dewey and many others, we
need a mechanism to allow us to ask those questions to the developer and get those
things answered. There were many, many unanswered questions. Only one of
which, were the financials, matters here. Commissioner Luke said the entire
record is, of course, contained within this process but it is not because we are
missing that tape. We would like to see, many of us would like to see, a day or
two out of your busy schedules right after the first of the year. Lets have a day or
two hearing and let people really get their answers back on the record. I think that
is important for the new Commissioner to hear this because she is probably going
to be voting on this.
My next point is we did just hear about what one might sarcastically call the 11.5
million dollar hidden resort railroad project. Because, I believe it is very clear
there are 23 people, perhaps 22 now, who are behind this project to put down an
enormous amount of cash and that fact has been hidden from us for four months.
Mr. Pieper who is just sitting here, was asked in the July meeting for that
information that is on the record. There were at least four or five including myself
who asked for that data on the record that is missing. I believe we have a right to
know who those people are and I believe this is sufficient cause to deny this resort.
Without even looking at other issues because, they have willfully lied to us. What
can you call it when a man says one thing and five minutes later is actually
showing that he was incorrect and that he was not telling the truth. I believe in this
resort application process they are required to come forward with that financial
information and they withheld it with purpose and this should be resolved now by
denying that resort application.
I ask you again with respect to the comments earlier that you provide, if you can,
the tapes to us of the other related meetings, the remapping meetings. There is a
lot of good information in there about Thornburgh and related issues and certainly
would like to have that in my hands and other peoples hands by Thursday night
this week at the very latest because, I think a lot of people head out for the holidays
before Christmas on Friday.
Next couple of topics are the need for serious additional data. During the
remapping process, it was very clear that Susan Swearingen, was putting into the
record many unsubstantiated assumptions about how these resorts are or are not the
source of many new permanent residents in our County. I don't believe we have
any real data in our County that is recent that was done by a third party for your
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 58 of 118 Pages
knowledge and for the knowledge for the rest of us, just exactly what these resorts
are doing. Are they Sagebrush subdivisions, or are they not. We need that data.
During the remapping process the County traffic engineer showed up and talked
generally about principles and when you widen roads and when you don't. He was
kind of echoing comments of Commissioner Luke, at the remapping hearing,
saying, excuse me if I paraphrase you incorrectly, but saying you were concerned
where the road dollars were coming from in a general way. The Commissioner did
not think we had enough road money now. I believe that we need our road staff to
tell us how much it is going to cost to upgrade that road with this new resort and
with the third level Eagle Crest use of that road. I think it is in the five to ten
million dollar range at least and I think that they should pay for it up front.
I want to point out with respect to the water, we have not had a new study of basin
water. We were able to find enough time and enough data to look at just six
sections, 4,000 acres in this County and we found 770 new wells. Just eleven of
those wells will have the capability to pump 21,000 acre feet, that is just eleven of
those wells that have been drilled since 97. Yet the data that you are relying on, I
believe, and certainly that the applicant relied on, is data in US-GS Reports of
2001. We checked and that data came from the wells that existed in 1997. We got
a real problem here, especially at low water times. I am over the time limit.
LUKE:
Your time is up. Thank you.
DALY:
Alright, any questions? (No response) Karin O'Banion is up and Lovitt Freeland is
on deck. Go ahead.
KARIN O'BANION:
My name is Karin O'Banion and I am a resident of Deschutes County. I urge you
to respect the decision...
LUKE:
I am sorry, you are going to have to give your address. It is part of the record and I
apologize for that.
O'BANION:
66240 White Rock Loop.
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Tuesday, December 20, 2005 Page 59 of 118 Pages
LUKE:
Thank you.
O'BANION:
Actually I have another address as well.
LUKE:
That one is fine, one is all we need.
O'BANION:
I urge you to respect the decision of Hearings Officer Anne Briggs and to deny the
Thornburgh's approval for their applications. Hearings Officer Anne Briggs found
that Thornburgh did not meet the criteria to the right to develop a destination
resort. True, Thornburgh's legal maneuvering has resulted in this meeting with
you today, but please do not let their threats of future lawsuits or perceived
political power persuade you to do anything but the right thing. Hearings Officer
Anne Briggs listened to hours and hours of public testimony. She read all the
letters and the emails, she reviewed and dissected over a thousand pages of written
documentation and she did her homework. I don't understand how you can have
time to duplicate the shear hours of work she did in a short time frame. If you
can't do the diligent research I believe that it would be impossible for you to make
a more informed decision that her.
I wonder too, how you can possibly sanction approving Thornburgh's application
when according to the Bulletin on Sunday, December 18th, and I quote, "at the
center of the project is DeLashmutt, who in the past two decades has faced two
bankruptcies, a law suit over his business dealings, and two cocaine related
convictions, documents show. He also owes the state more than twenty thousand
dollars for failing to comply with Workers Compensation laws. In addition,
DeLashmutt's partner, David Chapman, has had a group of former property owners
in the golf resort he helped develop while a civil law suite against him for
unscrupulous business dealings". I would like to enter the Bulletins article into the
record if it is not already.
LUKE:
It is in the record.
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O'BANION:
What I would like to know is, are you as respected Commissioners in the
community ready to buddy up to this duo. Chapman and DeLashmutt have
despicable reputations and I wonder what will happen if you approve this and the
project fails. Who will be left holding the bag? The taxpayers of Deschutes
County will end up subsidizing their failure and it will be ugly. Operations such as
Eagle Crest and Sunriver have large well financed corporations behind their
developments to ensure their success. DeLashmutt and Chapman only have a list
of convictions, lawsuits and bankruptcies.
I would also like to make mention, and I know other people have, about... we have
asked so many times, who is involved in this and we never get the answers. Today
we did get some answers about some investors that we have no idea about. There
is also a gentleman named John Everson, and on the deed of one of the Thornburgh
lands, he is listed and it says "family or business liaison" and he lives in California.
We still do not know who he is. So there is other people floating around out there
that they have not mentioned, as far as I know Gary Maddox, this is the first time I
have ever heard his name. Again we have asked time, after time, after time, and
every time you talk to them it is something different.
Let us be honest too, that destination resort developments are just a legal way
around an antiquated 1992 law to build upscale residential subdivisions built in
rural areas. Had the people who put the laws in place thirteen years ago knew the
explosive growth we have now, they would not have made that decision to build
subdivisions in rural neighborhoods. The only difference between a subdivision
and a destination resort, is a golf course and good marketing.
As matter of fact, the 2005 Holiday Edition of the Bulletin's New Home Living,
Eagle Crest and Sunriver are listed as subdivisions on page 89 of their listing. I
would like to enter that into the record as well (a copy is attached marked as
Exhibit J.)
I realize the promise of huge property taxes from Thornburgh residents is a big
incentive to approve their application. While this may entice you initially, think of
the average pay the workers are being paid. According to Linda Swearingen,
testimony at the League of Women's Voters, the average wage will be $22,000.
The unfortunate part is that this equates to a little over $10.00 an hour. This wage,
according to the Bulletin's housing report of December 19th , does not afford them
housing in Deschutes County, Crook County, or Jefferson County. I don't know
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 61 of 118 Pages
where these people are going to live. These wages do not afford them adequate
health care and adds to the already overcrowding road system.
I would respectfully request that you deny Thornburgh's application for a
designation resort in the Cline Butte's area of Tumalo and Redmond. Thank you.
DALY:
I would respectfully ask that any future testimony, we don't need any more
personal attacks on any of the developers or people here. We are well aware of the
Bulletins article, and we just do not need that anymore.
O' BANION:
Ok then, I have a question then. Did we not have people from Thornburgh come
up and say what a great guy DeLashmutt is? Didn't we have person, after person,
after person, we had the church come in for God sake. I mean come on... and I am
the first person to come up here and talk about the article. I am the first person.
LUKE:
That is not true. I brought the article up at the beginning of the hearing and asked
that it be put in the record as well as the article from the Source.
O'BANION:
Ok.
LUKE:
Thank you.
DALY:
Any Commissioners have any questions of this lady?
LUKE:
No.
CLARNO:
No.
DALY:
Alright, thank you. Freeland, is that correct?
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 62 of 118 Pages
LOREN FREELAND:
Yes, Loren Freeland.
DALY: Loren Freeland and Maureen Thomas, looks like, is on deck.
FREELAND:
My name is Loren Freeland, I go by Larry. I live at 65695 White Rock Loop in
Tumalo area. Some of the things that have been brought up already I was going to
allude to but there is one thing, pertaining to the water. I have a well and it is at
545 feet, and I am about mile off Cline Falls. It was several years ago that Eagle
Crest was playing around with their water and my neighbor who had a well for at
least 35 years, after the timing was just perfect, after they had fooled around with
the ground water, I am not sure exactly what they were doing over there. I am a
former electrical contractor and have been a contractor for 30 years in Central
Oregon. I have done, for Neil Chase, I have done some wiring when he initially
started to initiate Eagle Crest Development. What had happened, is after they
fooled around with their water, my neighbors well went dry. This water has been
here for 35 years, it is a community well with three parties using off of it. I was
told at the time, well, he just has to go deeper because whatever, the water vain or
whatever had dried up. I was at 545 and he seemed to be... or not in the same one
as mine. They pulled the well, as a mater of fact Newton Well pulled the well. I
think Mr. Newton ought to withdraw his name because of a conflict of interest.
They re-drilled the well another 50 or so feet and lengthened the pipe and they
obtained water at the same level that my well is at. My well has been in since...
for about seven or eight years. So, they try to tell you that it does not affect the
aquifer. I contradict this because how can a well of 35 years being used out of go
dry coincidentally after Eagle Crest had been fooling with their well.
Another thing, I don't think if these gentlemen make reference to Eagle Crest quite
a bit that this is too good of an idea because I have it for a fact that they used to,
when they were developing, they developed something then go get permits from
Deschutes County. I never saw Deschutes County have them tear down anything
they ever put up. This is factual, my wife worked for the Planning Department for
fifteen years. That is the end of my statement.
LUKE:
You are saying your neighbors well was about 30 feet or 40 feet shallower than
yours? They lengthened it?
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 63 of 118 Pages
FREELAND:
Yeah, around that. As the crow flies his well is about 300 feet from mine.
LUKE:
But his well was about 500 feet at the time it dried up.
FREELAND:
Right, his name is Jim Ray if you want to check the records.
LUKE:
Ok, thank you.
DALY:
Alright, thank you.
LUKE:
Just letting you know that if you bring that in it stays in the record.
MARIANNE THOMAS:
Yeah, I would like that to happen, thank you.
DALY:
Maureen Thomas...
LUKE:
Some people bring pictures and it is the only one they got.
THOMAS:
Oh no, this is for you. My name is Marianne Thomas, I am...
DALY:
Excuse me just a minute, I need to get someone on deck. Looks like a Marianne
Fellner is on deck. You can go ahead.
THOMAS:
I am Marianne Thomas, my address is 19745 J. W. Brown Road in Bend. I would
like to place into the record, if it is not already in there, the Upper Deschutes
Record of Decision and Resource Management Plan presented by the BLM,
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Tuesday, December 20, 2005 Page 64 of 118 Pages
September 2005 with the accompanying maps (a copy is attached marked as
Exhibit K.)
LUKE:
Kevin is that on the record anyplace?
KEVIN HARRISON:
No.
THOMAS:
It is based on this document that the BLM will evaluate the right of way
applications for the Thornburgh Resort. As one of the thousands of citizens of
Deschutes County that uses this recreation area, the Cline Buttes Recreation Area,
which Thornburgh property sits in the middle. I am concerned that if this
application is approved, at this point, before the NEPA process has gone through,
that the public process and the BLM process in considering the negative
implications of these roads will be shortened and cut off. These are just a couple
of the roads. I am sure you are familiar with the maps.
The Cline Buttes Recreation Area is a mixed use recreation area. I horseback ride
there, mountain bike, there are dirt bikers, and off road vehicles. We all use the
area. Half of it is designated as an area of critical environmental concern, almost
half of it, and that includes the historic Tumalo Canals and also a rare plant known
as the Planters Milk Vetch Plant. This buts right up to the Thornburgh property
here (showing map) and also one of their southern access roads which goes
through BLM land is in the middle of this area of critical environmental concerned
land. Also the old growth Juniper priority goes through this, their road would cut
through that too.
Barr Road has not been mentioned today and as you can see Barr Road is a dirt
road, it runs directly north/south through our public BLM land. It is a hiker,
horseback rider, mountain biker, main road. It is a dirt trail. I am concerned as a
public citizen that this would be paved. As you can see it cuts right through the
center of public lands. This would be paved and would change the entire face of
the Cline Butte Recreation Area. The specific management plan from BLM is to
continue the NEPA process in January in `06'. It seems that any approval of this
application at this time would be premature.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 65 of 118 Pages
DALY:
Ms. Thomas can I ask you to go to that map over there and point out that road that
you are talking about.
THOMAS:
Which one, the two...
DALY:
The one on the left that shows Thornburgh development. Which road are you
talking about?
THOMAS:
This is Barr Road and that is this dirt road here (pointing to map) That is the road
that cuts through this area of the Cline Butte Recreation Area, right here. A small
part of it is on Thornburgh property, most of it is not.
DALY:
Is that the part down on the lower left corner?
THOMAS:
Here?
DALY:
Yes.
THOMAS:
Yes, this is also part of Barr Road.
DALY:
Is that the road that you are concerned about being paved?
THOMAS:
In the future, yes, I would be concerned about that being paved. The other road I
mentioned is the southern access which I believe is this road. That goes off of
Cline Falls Highway. This is on BLM land. That goes through the priority old
growth Juniper lands. This is, I believe, they stated that this has been approved
already. This has not gone through the NEPA process with BLM so I am
concerned about that too. The unstated northerly... I don't know, and I don't think
Mr. Livingston answered the question of the northern access to the resort. It seems
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 66 of 118 Pages
to me as just someone looking at the map that Barr Road would be a perfect access
point for many of these northern areas of the map. This is all land we ride through,
bike through, and hike through. It is a beautiful wild desert area that we enjoy.
Thousands of people of Deschutes County, not just Tumalo residents.
DALY:
Ok, thank you. It does not appear from what I have seen that Barr Road is even
considered an access, at this point.
THOMAS:
There is also an idea of this ...it is just a concern as a citizen and in the future.
DALY:
Something in the future.
THOMAS:
Possibly, yes.
DALY:
Are you through (Ms. Thomas indicated yes) Does she have any more time left?
(Was indicated yes) You have a minute left if you want to use it.
THOMAS:
Oh, well you know I, this is our public land and the Thornburgh Resort it is their
land and I understand that it is private land. However, what they do here will
interfere in various unknown ways with a huge amount of greatly used year around
public recreation facilities. Mixed use, not just motorized and non motorized
vehicles. So, I would think that an approval at this time would be premature.
(Gave oversize display to Devin)
Thank you very much.
DALY:
We can give you your board back.. We have two pages of them yet. Legal
Counsel has indicated maybe we should take a lunch break. We still have a
number of folks that would like to testify. How about 1:00 o'clock.. Can we get
back here by 1:00 p.m.?
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 67 of 118 Pages
Commissioner Daly called recess at 12:10 p.m.
Commissioner Daly reconvened the meeting at 1: 00 p.m.
DALY: Marianne Fellner, is that you? You are next and Doug Stout is on deck.
LUKE:
Devin, I received an e-mail, Commissioner's received an e-mail from someone
who was here this morning, and I will put that into the record (a copy of the email
from Kathy Yoder is attached marked as Exhibit L)
DALY:
If Doug Stout is not here the next person up is Margaret McLaughlin. Is she here?
Don't see her. Dr. Sheryl Boyd on deck. On deck is up here, are you Ms. Boyd
(Ms. Boyd responded yes) Ok, you can go ahead (to Ms. Fellner) We will
continue where we left off.
MARIANNE FELLNER:
My name is Marianne Fellner, I live at 65044 Highland Road, Bend. My
testimony refers to the Thornburgh Application Sections; Hydrology Water Supply
Feasibility Evaluation, Sanitary Sewer Collection and Disposal, and DEQ
Regulations pertaining to the Use of Reclaimed Water and Treated Effluent from
Sewage Treatment Plants.
Thornburgh must be required to mitigate the full amount the water consumed by
their irrigation estimates. Their mitigation requirements are not fulfilled.
Thornburgh Resort stated in their conservation plan in the water section, their
intention to monitor the efficiencies of golf course and other irrigation needs in
order to optimize water uses. Plans include, wastewater disposal planning that
utilizes beneficial use of reclaimed water. Audubon International has a
certification program designed to guide and educate golf course superintendents in
conservation management practices as well as guidelines for developers to
integrate an eco system approach to resort development. I have attached their
signature programs as well as articles on environmental approaches to
developments (a copy is attached marked as Exhibit M.)
The club at Pronghorn has been recognized for their efficient use of level four
treated effluent from the City of Bend to irrigate their golf courses and surrounding
landscaping according to John Anderson, Superintendent of their courses and the
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 68 of 118 Pages
National Award winner of the 2004 Golf Digest Environmental Leaders in Golf
Award. Current golf course watering practices carefully monitor irrigation
application to meet turf grass needs. Water supply into the root zones and no
deeper between one half inch to a few inches of water. The goal of a well
managed irrigation program is 100% consumption.
Thornburgh's total annualized volume of water use for the golf course irrigation is
1,081 acre feet. Miscellaneous irrigation demands are an additional 195 acre feet.
Mitigation is required for the amount of ground water withdrawal that is
consumed. As modern landscape irrigation practices do not apply water deeper
than a few inches, the amount of water mitigated can not be equated as quasi
municipal consumption of 40% or even farm irrigation consumption of 70% but
must be truly mitigated at full consumption which would be 1,276 acre feet or four
hundred and fifteen million, seven hundred and eighty-six thousand gallons per
year.
The sewer plan describes the disbursal of effluent collected within the resort onto
the grounds. They state that they may store treated effluents in a tank, or ponds
and apply it to the ground via sprinklers, or they may discharge into an
underground dispersal field, or into a drip irrigation system, or through above
ground irrigation, or use sanitary drain fields. They go on to say that the most
efficient system, drip irrigation, would need to be evaluated for cost effectiveness.
Thornburgh states that the total hydraulic load of 625,000 gallons per day of
effluent will be disposed of in DEQ approved method but nowhere do they define
the level of treatment proposed. What is the cost of constructing two private
sewage treatment plants that are capable of sanitizing waste to level four? Would
they be evaluated as cost effective?
If this project is truly planned to be a world class resort, then future residents will
have expectations of protected public health. Does Thornburgh propose to store
the treated water in the ponds and lakes throughout the resort? If they spray treated
water on the golf courses how will they contain drift from wind? What are the
effects to wildlife that drink from the ponds? Can they prevent children from
playing in the water? Will there be warning signage? These questions and more
must be addressed when using treated effluent as outlined in DEQ regulations
enclosed.
Thornburgh sites Eagle Crest as a role model. Eagle Crest does not use treated
effluent on their golf course, they have used a series of drain fields. In 2001 the
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 69 of 118 Pages
DEQ was notified by a resident of discharge of sewer onto the ground surface.
DEQ issued three letters of non compliance and DEQ now operates a mechanical
sewage treatment system.
If conservation methods are used for irrigation and if all water and sewage is piped
to central treatment facilities and if efficient methods are used to disperse the
treated effluent then these methods will prevent the seepage of irrigated water back
into the ground water. Twelve hundred and seventy-six acre feet can not be
mitigated at a mere 40% consumption rate. The consumptive use to use the
irrigation rate of at least 60 - 70%, though the true figure should be close to 100 %
consumption if usage conservation methods are used.
Thornburgh can't have it both ways. Either they intend to saturate the ground with
irrigation water or they intend to practice modern water conservation methods to...
DALY:
Your time is up.
FELLNER:
fully use the pumped water from the aquifer.
DALY:
Ma'am, your time is up.
FELLNER:
Thank you and welcome to you Miss Clamo for joining the staff.
LUKE:
You are welcome to submit that whole thing if you did not get a chance to finish,
you are welcome to submit that into the record.
FELLNER:
I shall (a copy is attached marked as Exhibit N.) And also, I have brought a letter
from a neighbor who could not make it today from the weather. I submit a
testimonial letter from Jeff Meyers at 8530 SW Wickiup Avenue in Redmond, OR
(a copy is attached marked as Exhibit O)
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Tuesday, December 20, 2005 Page 70 of 118 Pages
LUKE:
You mentioned Pronghorn a couple of times. (Ms. Fellner stated yes) We have
just been dealing with Avion Water and had to allow them to cut a road because
the effluent coming out of the Bend Treatment Plant sometimes does not meet the
necessary level for them to irrigate with. So, Avion is having to extend a larger
water line out there using Avion Water to irrigate the golf course when the City
does not meet the standards. So, even having the argument to be made of even
having a sewage disposal system does not necessarily guarantee you are going to
be able to use all that water where the public is around.
FELLNER:
I agree completely. The reference to using effluent is not to be taken lightly. It is
a highly regulated program and you can't just say well, conservation methods say
lets use effluent on the golf courses. It is a great idea, but it does entail a
tremendous amount of infrastructure expense in order to bring them to public
standards.
LUKE:
It is a very good use of that waste water if you can (unintelligible words.)
FELLNER:
It is an excellent use but if the water is all piped and it is used in a conservation
method, then it is consumed efficiently. The Audubon International has come up
with an entire network of programs and certification directing people how to use
their water for full consumption. That consumption should be mitigated. It is not a
quasi municipal use, it is an irrigation use. We are all for conservation methods,
but those conservation methods need to be accounted for.
LUKE:
You are actually continuing your testimony.
FELLNER:
Sorry.
LUKE:
Nice try though.
DALY:
I thought you asked her a question, Dennis.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 71 of 118 Pages
LUKE:
I did not expect an answer that long. Thank you.
DALY:
Is there anyone else who would like to ask a question? Commissioner Clarno?
CLARNO:
No, I am fine thanks.
DALY:
Alright, excuse me a minute. Gail ...I don't know, is there a Gail out there? I can't
read the last name. (A gentleman spoke up and said; her name is Gail Burton and
she asked me to read her letter and I am on the list later)
DALY:
Well, she is on deck so if you want to take her place, you want to read her letter
right? (A yes response was indicated.) You can come up here and read her letter
and give your testimony also.
CRAGHEAD:
May I also just suggest putting the letter in the record because that is written
testimony and will be in part of the record and it will be... (Gentleman stated she
has some maps with the letter also)
DALY:
Lets just submit that for the record and what is your name?
JIM GUILD:
I am Jim Guild.
LUKE:
Are you familiar with the maps so we could put the letter in and you can tell us a
little bit of what the maps are about?
GUILD:
Yeah, it refers to the little town of Tumalo.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 72 of 118 Pages
DALY:
I am sorry I called you up so soon because there is a Sandy Lonsdale that is next.
Alright, Sheryl Boyd.
SHERYL BOYD:
Sheryl Boyd, 22370 Erickson Road, Bend. I am going to try not to be repetitive
but I do believe that is my right as well as my duty to express my concerns.
Someone mentioned earlier that there was not this uproar about Pronghorn, but I
think that we are getting to be educated citizens and we are smarter now and that
we need more data. We are no longer willing to just sit by and let our environment
be ruined.
My first issue I want to talk about is environment. I won't go on a great deal here
because I think that it has been said, I just think that we need to be aware that we
are not only making decisions for us today but for future generations so I urge you
to consider that. I urge you to do a non biased study or have one commissioned
that looks at environment by individuals that are not either consultants of those
who are going to financially benefit or of those that financially benefit.
Water was discussed very eloquently by the previous speaker so I won't go into
detail here. I just want to say that maybe we might increase the costs of water but
it is very important that we use the water responsibly. That is much more
important than increasing the cost of water.
Deschutes County needs to have the foresight to protect our quality of life and not
destroy our beautiful habitat. We want to continue to ensure that the quality of
living in Deschutes County is maintained and not disturbed. I want to make it
clear, this project is many miles from my home. It will not ruin my view, I have no
financial interest, I won't have to deal directly with the traffic or public safety
issues that are very serious, and it won't affect my own farmland. I do want to say
in terms of farmland that I know what it means. They tell you, and now two years
in a row, that they are going to limit your water. You have to be very creative to
deal with that. Here again, I think that I am, and hoping that you will be aware of
all of us farmers and take our water seriously. We need to put major consideration
into the water issues.
I want to also say that we need to take our time here. We can not make decisions
that are based on making those early decisions because of legal threats to us. In
fact to me, that means you get up your backbone and you say, why are they
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 73 of 118 Pages
threatening legal cause towards us. Why are they rushing this? I think that the
development of destination resorts... that with that there needs to ensure that there
is a complete and non biased assessment to be carried before these get approved.
We are setting precedent here. I encourage you to deny this, or at least delay it.
We need not rush. I believe that Deschutes County's future is at stake. Thank you.
LUKE:
I would like to comment on that because "rush" is an interesting word. There is
timelines written within the State Law. Those are to protect the applicant as well
as the appellants. If a decision is not made in a timely manner by the local
jurisdiction, the State of Oregon is going to make it. If we had not agreed to this
hearing the applicant had every right to go to court and get a writ of mandamus,
which the River House was going to do with the City also. A writ of mandamus
requires the County to go in to defend, not the applicant, the County. If the court
finds for the applicant, the conditions you are asking for and the conditions we
were asking for, would not even be put in it. There would be an order from the
court telling the County to give them a permit to move forward with no conditions
at all.
So, I think this hearing is an advantage to the County. It is an advantage to the
citizens because this application again, gets another review, and they are back in
the process. You get a right to use... an opponent gets an opportunity to go to
LUBA or the Court of Appeals, whatever you want to do. If we had of gone with a
writ, that would have been a whole different game and I don't think that would
have been in the best interest of Deschutes County.
BOYD:
I understand that I just and I just encourage you to continue not to hurry this
process but to really make sure all of the I's are dotted and the T's are crossed also
as we proceed. Thank you.
DALY:
Sandy Lonsdale is next and Jim Guild, you can come on up now.
LUKE:
You understand we get to keep these?
SANDY LONSDALE:
They are identical, you don't need three?
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 74 of 118 Pages
LUKE:
No, but we need to keep at least one.
LONSDALE:
I have other exhibits here to enter into the record (a copy is attached marked as
Exhibit P)
DALY:
Identify yourself for the record please.
LONSDALE:
My name is Sandy Lonsdale, I live at P. O. Box 5506, 64925 McGrath Road in
Bend. I previously provided written and oral testimony before the Deschutes
County Hearings Officer regarding the Thornburgh Destination Resort proposal for
land on and near Cline Buttes here in Deschutes County. Today I reference those
comments, they are part of the record. I have new material to bring to your
attention regarding this proposal.
As a resident of Tumalo area for 30 years, as a professional photographer, and not
very well referenced by those photographs. But, I will note that I shot those at
night. As a volunteer conservation leader and activist, I have recreated on and
worked to protect and enhance the public, BLM, and Forest Service lands in and
around Central Oregon, particularly these lands in the urban interface near Cline
Buttes. I believe it is important for citizens to be involved in their government at
all levels in order to help insure good government and enduring livability.
I would like to introduce a piece of evidence I brought to illustrate my point today.
It is a photograph of the south flank of Cline Buttes at night showing what I
believe is a County Code violation of the Deschutes County Lighting Ordinance,
that is DCC.15.10. As you can see from this photo of the former Harry Kim
property, it is tax lot number 7800, now proposed by the destination resort
applicant. This area is very lightly populated, you can tell from the photograph.
No trick photography there, I am just standing on White Rock Loop looking
toward Cline Buttes to the north. This area is very lightly populated, it is
surrounded by public BLM land. It is heavily treed and is slightly elevated from
the surrounding land allowing light and noise pollution to carry a long way.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 75 of 118 Pages
Imagine another five to ten thousand lights here in a few years. Imagine the
thousands of people, homes, cars and noise here in this relatively wild and
reasonably intact wildlife habitat. Now imagine it with 48% fewer trees. As the
Thornburgh applicants have said, they will remove that amount of old Juniper tree
cover if their proposal is approved.
More light and noise and visual impact to surrounding land owners and to adjacent
public lands, decreasing their value for other users. In my testimony here I cite all
the Deschutes County Code about Lighting Ordinances.
The Thornburgh application states the resort will comply with Deschutes County
Outdoor Lighting Code. But, how can we be sure if there is no code enforcement?
Why don't they simply adopt the Dark Skies principles in their application and
agree to the three points here, that I do not need to mention but that are part of the
record. Dark Sky principles, how to keep residential lighting from impacting your
neighbors in the surrounding land.
Additionally Thornburgh has not proposed any means to limit visual impacts from
power lines or communication towers. The burden of proof in land use matters
should, and must be high since we all have to live with these consequences of these
decisions for many years to come. So, in keeping with Thornburgh's stated vision,
page one of their application, item B-24, the Thornburgh Resort, this is a quote
"will be a hidden retreat, the natural beauty of this rural setting will be preserved
by maintaining large areas of the natural environment." It is important that we
now introduce language that will protect our community from visual blights and
language that will preserve the visual integrity of our buttes and skylines. I
therefore propose that the following language be included in Thornburgh's
CC&R's and in the architectural guidelines. It is one sentence. All
communication, power, cellular, microwave, and radio towers or antenna, shall be
disguised as vegetation so as to be unnoticeable to the surrounding area.
Thank you for this opportunity to provide this comment. I've got all of the Dark
Sky material here, including the proposed U.S. Cellular Tower at the Bend Golf
and Country Club. It is in one of these pictures, you can't even tell that it is there,
so, we can certainly do this (a copy is attached marked as Exhibit Q)
LUKE:
My son lived down in Monterey when he was in the Navy and there was one there
right on the highway coming out of Monterey that is like a tree and it looks like a
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 76 of 118 Pages
cell tower that looks like a tree. You brought up our County Lighting Ordinance
and I think we have a very good Lighting Ordinance, a lot better than the City has.
We operate on a complaint basis. We do not have people who drive around and
write tickets for police. But, if you will file a complaint with the Community
Development Department, they will investigate that.
The other thing I did is, the Commissioner's did, was make Lottery money
available to Community Development that people could apply for. Tom was it
$50.00? They could get $50.00 towards either replacing the light or getting a
cover built for the light so it shines down. We will enforce the Lighting Ordinance
but we have to know about it. I wish the City would adopt one as good as the
County. When we lit this building here, you could see it from a long ways up on
the hill. When those complaints came in-we thought we did a good job but we
did an even better job of dimming those lights down so it did not impact the
neighbors. So, again, I think we have a pretty good Lighting Ordinance and we
would enforce it if somebody would let us know there is a violation.
LONSDALE:
I forgot something. At the beginning of the hearing there was a request that I have
made to Devin for the transcripts. Devin and I have talked about this and
Catherine Morrow has told me that the transcripts that I had requested from Devin,
it was actually last Wednesday the 10, those are from the work sessions and that
was someone else's department. Those tapes are now in Devin's hands, I believe,
and we should have a transcript by the end of this week.
LUKE:
We only need one of these for the record, right. (Someone stated correct, and they
will work with Sandy to make sure he gets the tapes he is looking for)
DALY:
Any other questions for this witness?
LUKE:
I have one for Legal Counsel while she is here. Previously, Sandy your signature
is on the letter for the property for La Pine isn't it, are you with that company?
LONSDALE:
My signature is not on any letter about the lease, the purchase option, no. But I do
work for the company that is proposing the plan.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 77 of 118 Pages
LUKE:
He works for the same company that Mr. Munson is with which has an offer before
the County and I did not know if we needed to put that on record.
CRAGHEAD:
You just did.
DALY:
Thank you.
CATHERINE MORROW:
Mr. Chair, for the record, Catherine Morrow, Deschutes County Planning Director.
I just wanted to clarify that Mr. Lonsdale has requested tapes from three Planning
Commission meetings, one which you also attended regarding Destination Resort
Mapping. At the lunch break I went over and located that record and we will be
providing it to your Administrative Staff (to Board) for copying. We are not
talking about a transcript, we are talking about copies of the tape.
LUKE:
I would like to point out that we don't have fast copying, if the hearing took three
hours, it will take 3 hours to copy it. So, we will get them out. Bonnie will he be
contacting you or Liz or who?
BONNIE BAKER:
Connie does those.
LUKE:
Thank you Sandy.
DALY:
Ok, James Guild is up, Brenda Pace would you come up you are on deck.
JIM GUILD:
My name is Jim Guild, (GUILD), I live at 19845 J. W. Brown Road. I have some
comments and I have some info that I want to enter into the record (a copy is
attached marked as Exhibit R) My neighbor Gail Burton who lives one street over
asked me to read her letter, she had to leave before lunch. If I can read that (a copy
is attached marked as Exhibit S.)
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 78 of 118 Pages
DALY:
We are not going to read the letter, we are just going to have you put it into the
record.
GUILD:
It would really be good for me to read the letter because of the map that is part of
the record.
LUKE:
We will be able to see them.
GUILD:
What I would like to do, I have a few things, I have some photo's to enter into the
record (marked as an earlier exhibit with the rest of his documentation- Exhibit R)
that are basically photo's of Cline Falls Road and the different intersections of
Hwy 20, Cook Avenue, Fifth, and Seventh.
DALY:
Is your testimony going to be referring to those photographs?
GUILD:
Yes.
DALY:
I would suggest you hand us the photographs and we can look at them while you
are testifying.
GUILD:
My feeling ...we have heard this morning that there is a new development as far as
them not wanting to have the northern access road taken off the table. It seems
there should be a new traffic study because of that. That would be assuming that
they are changing their whole traffic design that there needs to be a brand
new... (unintelligible words)
We would like to have the BLM right of way application entered into the records,
including all the pages that are missing from the first application. We would like
to get a complete copy of the revised rural application including the entire
operating agreement between the applicant and BLM.
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As a side, Cline Falls Road has been identified by Deschutes County as inadequate
for the use right today. So, all of a sudden not only are they bringing in more
traffic than they originally proposed but there is a definite problem with Cline Falls
Road that has been identified by Deschutes County. I think that Thornburgh wants
to proceed without all their needs and impacts upon access, water use, and roads.
Highway connections have been fully addressed. A classic example is on their
initial application they offered $7,000.00 to improve the Cook Avenue/Highway
20 Interchange. That has somehow gone up to $500,000.00 with the same
information that they provided with the $7,000.00 offer. I believe they made the
argument that the interchange already fails so, there is isn't a need to improve the
failed interchange. That is their argument.
They should be required to be completely honest about their water needs. The
irrigation (not municipal), traffic impacts and economic data. Such is the actual
wage rates paid to the mean work force which will be landscape, maintenance,
maid and food service. None full time and none of a pay rate that allows them to
save any money. They need to be financially responsible for all road
improvements slash expansions, all interchange improvements. We have heard
from 10 to 20 million dollar cost for some sort of an overpass at Highway 20. I
don't really believe that the State of Oregon is even going to deal with this in the
near future. I don't think that people who live in the Tumalo area are the ones that
are making this interchange fail. I do believe that Eagle Crest has a major impact
and we know that Thornburgh will.
They need to provide permanent water rights, not temporary mitigation credits or
leased water rights for their water needs. When you have a marketing program
calling it a golf community and you have temporary mitigation water rights it
seems kind of bizarre what is to happen. Is the golf course going to dry up in
seven years when the rights are disappeared? They need to be permanent
mitigation credits.
They need to prove that their permanent homes actually have agreed to be part of
the rental group. I can't believe that a 3 to 4 million dollar home is going to be put
into a rental pool. I do not believe it. They need to have all BLM agreements in
hand before final plating. I am a builder, Mike and Dennis you guys have been in
the trade. I think if under any other conditions in the private sector, we would be
jeopardizing our careers and our reputations to be involved with such a poorly
thought out nebulous proposal.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 80 of 118 Pages
I have this letter from my neighbor, it refers to the intersections of the school,
Tumalo School.
DALY:
You are out of time.
GUILD:
The map I believe is pretty clear cut.
DALY:
You can enter the letter into the record, along with the map (already entered
earlier as Exhibits.)
LUKE:
You said that Deschutes County identified Cline Falls Road as substandard or
failing. Who in Deschutes County did that?
GUILD:
I believe this is part of the public works. Actually, there is even a part of the road
which is just north of Innes Market where the "S" turns are which is before the
Thornburgh entrance that from what I understand, the County does not even have
the 40 foot easement rights. They would have to get easements.
LUKE:
You don't have a document, you don't have a reference to who declared that from
the County?
GUILD:
No, we could probably find out. There is a list of all the different County roads
and Cline Butte was on it.
DALY:
I also was interested... You mentioned a figure 20 million dollars for an
interchange. Where did you come up with that?
GUILD:
Well, I think that the State of Oregon has had a number that they now realize for
bridges and overpasses and cloverleaves and that number is a number that I think
they now know is pretty much... from the 10 to 20 million dollars depending on
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Tuesday, December 20, 2005 Page 81 of 118 Pages
vacation or having to acquire properties. We have Hap Taylor's Property, we have
Tumalo Feed store, we have... and there is a lot of commercial property there not
owned by the County.
LUKE:
The Sunriver interchange, for the record, the Sunriver interchange just bid out at 8
million dollars. I sit on one of the transportation committees and what they would
look at there, probably, is 97 going over Cook Avenue. Not a full interchange...
GUILD:
You mean Highway 20?
LUKE:
To allow Highway 20 to go over Cook Avenue and perhaps the next road down
that goes by Hap Taylor's, that area. That whole area in there. That is
considerably less than that amount, especially when the Sunriver one only went for
8. So you would probably be somewhere between 8 - 10 million, somewhere in
that area.
DALY:
Ok, Brenda Pace is up and Martin Winch ...go ahead Brenda.
BRENDA PACE:
Hi, I am Brenda Pace, 60738 Golf Village Loop, Bend. I am a Planning
Commissioner in Deschutes County but I am speaking for myself today. What I
would like to speak to is the protection to the open space on this project. It hasn't
been mentioned much in the public discussion but I feel that there is a problem
there. On pages 18, 36, and 52 of the Hearing Officers findings, she mentioned
protection of open space as protection in perpetuity and permanent open space. In
both cases, implying that our standards in the County are for permanent open
space. The proponent has asked that this be taken care of through donation of the
lands to the CC&R...to the homeowners association and covered in the CC&R's
which does require a substantial vote to sell those lands for other uses. I believe it
is 75% approval from the homeowners to sell these open spaces to other people. It
sounds like a high requirement, on the other hand, I believe it is happening in our
neighborhood. There can be situations where permanent is not permanent under
these kinds of situations.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
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The applicant said that they were also going to have the County to approve any
development of open space. The County is does not enforce CC&R's. So what the
County, I believe, would be looking at is enforcement of whatever the then current
standards are, which are the 50%. Which is the 50% open space. In regards to
that, I worry because there have been regular tracks over the mountain to Salem to
change State Land Use Laws as a regard to Central and Eastern Oregon. There
have been changes concerning destination resorts, the number of units that need to
be transient units and so on. So, I believe in future, 10, 20, 30 years that number
could be changed by efforts from individuals in the community.
To solve this, the Commission is well acquainted with conservation easements.
Conservation easements provide a much higher level of protection. Conservation
easements to third parties. The County uses them in connection with river
frontages, several river frontages, and is also recommended them concerning the
sewer plant which had considerable open space around it for Oregon Water
Wonderland II. So, in those two cases, the County has used conservation
easements and my thought today is I would urge you to use conservation
easements for the permanent open space at this project.
LUKE:
Are you done?
PACE:
Yes.
LUKE:
I have question on that because when we did the one at Oregon Water Wonderland
there was people who raised the concern about ...well, if the group that's in charge
of taking care of the easement doesn't anymore, then does it fall upon the County
to maintain that? If the open space, which includes the golf course, went into a
conservation easement and the developers homeowners association at a later time,
chose not to maintain that, then does it fall upon the County? I don't expect you to
answer but this is something you have to look at, does it become the County's
responsibility to maintain that open space.
PACE:
May I try to answer that?
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 83 of 118 Pages
LUKE:
Sure.
PACE:
In most places, unlike Deschutes County, conservation easements are granted to
third parties, not to the County for precisely that reason. Therefore, the third party
can determine what they need in order to prospect their continued existence and the
ongoing protection of the open space itself. So, it becomes a third party
negotiation as to how long term stewardship will occur.
LUKE:
In Oregon Water Wonderland, Legal Counsel can correct me if I am wrong, but I
think we did grant that to the homeowners association for that area. Again, if they
fail to do that, it is going to fall to the County.
CRAGHEAD:
I can't remember but I do know that part of the condition was that you had them
reserve a certain pot of money to maintain that.
PACE:
There is usually in this case, the third party negotiation, understanding that they
may have stewardship at some point down the road, does a calculation of
endowments that protects that. Now, in a situation where it is going to be a long
time before this eventuality might occur, a long time, then that endowment
becomes progressively smaller. In fact, if the occurrence does not happen for
twenty or thirty years, that endowment can be very small because it has been
invested in the market and can grow for that period of time. As just a general
statement, the CC&R's are a very difficult was to protect land in perpetuity. The
County is not required to enforce CC&R's. The County would be looking at
whatever the then current standard is. If it is not 50% at that point, because it has
been changed by State law for some reason or another, then there is no more
protection. We have said that our standard is permanent protection.
LUKE:
Not only is the County not required to enforce CC&R's but they can't.
PACE:
I know. Thank you.
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DALY:
Martin Winch and on deck is Catherine Stout? Is there a Catherine out there (no
one answered.) Ok, Catherine is not here, Caroline Gobille, is she here? I don't
see her, we are getting rid of this list real quick here. Mara Stein is on deck.
MARTIN WINCH:
Thank you. My name is Martin Winch, I am here for myself and my wife Carolyn.
We live at 19300 Innes Market Road. We have a beautiful piece of land, thank
God, that we have had since 1965 that has exquisite views of Cline Buttes. We are
about 2 miles south west of the Cline Buttes. There is a couple of points that I
want to make. Some of them in the little memo before you which I have also given
to Devin over here (a copy is attached marked as Exhibit T.) I won't touch on a lot
because others have emphasized the issues.
This is a really big project and I don't mean to state the obvious but Cline Buttes is
a very big prominent land form. This is going to have a significant affect on
everyone that lives in the Tumalo area and beyond. It is also bigger than it looks
like because, many persons will remember that, there is a proposal that is far from
dormant to have the Division of State Lands pony up an even larger amount of
acreage taken from the BLM, largely to the west and to some extent to the south of
this. That may be somewhat dormant at the moment but it is going to come back, I
fear. So, what goes on here is very likely to be magnified considerably by a further
taking of BLM land on the west and south. That BLM land was the subject very
recently of an extensive planning process with lots of citizen involvement and I
encourage... I have not seen a representative of BLM here today, but I know that
from the earlier hearings they gave extensive really valuable commentary and I
hope that the Board will take that fully into account in terms of the wildlife issues,
the recreation issues, involved there.
Related to that is the Barr Road issue which someone brought up. It is really
essential that it be a specific condition of the approval of this Thornburgh thing
that there be no access to Barr Road. That opens a can of worms that nobody
wants. It completely changes the landscape in terms of not only where the traffic
pattern will flow but what happens to that holding of BLM land to the west. So, I
think that it is important that that be specifically provided no access to Barr Road,
which is now undeveloped.
It is a shame that more persons can't be here. The original hearings were full of
just Tumalo folks lining the walls, people that are probably hard at work today
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 85 of 118 Pages
while we are in here. This really affects the quality of life out there. That is a rural
area. Sometimes we laugh, we call it the golden triangle or something but there is
a rural lifestyle being pursued out there. There's families that live out there,
there's citizens of the County, people that really care about the land and the way of
life. This has got nothing to do with that. This is totally outside people, this is a
money making thing. That's cool if that works with the rest of us. We also have
property rights and property values which are not going to be favorably affected by
this development.
I am glad that Sandy Lonsdale went before me. The point that I want to spend the
rest of my time on is the visibility issue and I did not know that he was going to
talk about that, let alone be here. I think it is a very important issue because the
Cline Buttes, the location of this, is going to be higher than most of the
surrounding ground. This is not going to be hidden in the Junipers like Pronghorn
and some of the other resorts. This place is going to be really visible like the
Burma Road up there by Smith Rocks that is still visible today. There is going to
be road cut visibility, light visibility, construction visibility, just dramatic. I'd like
to see it mitigated in any way possible.
Here are some suggestions that I have. I think with respect to lighting, the
Lighting Code... I understand its enforcement is on a complaint basis, so I think
this should be part of the CC&R's. I have detailed these in my, and conditions of
approval also, in my notes. There should be no street lights nor outdoor lighting on
roads nor in commercial areas. Lighting on private lots, including porch lights,
must be fully shielded, which is terminology from the County Lighting Code. They
should be kept within lot boundaries and that there should be lighting regulations
no less stringent that the International Dark Sky Association model which should
be required to be part of the CC&R's. And that we should provide for enforcement
of these enhanced lighting regulations by County Code Enforcement, which is
apparently now not the case. So, those with respect to lighting, and with respect to
road cuts, structures to make provision for the exceptional visibility that those road
cuts will have by minimizing with and requirements relating to their location,
design, and construction. Thank you.
LUKE:
Martin I would like to point out... I guess I need to clarify... enforcement is only
on a complaint basis for existing lights but the building department requires, during
their inspection process, that all lights be shielded, pointed down to the ground and
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 86 of 118 Pages
that kind of stuff. Complaint basis is only for the lights that were in effect when
we passed the ordinance and still have not been changed.
WINCH:
Yes, Commissioner. My point is that the higher elevation of the Resort is going to
mean that the ordinary lighting enforcement provisions are not going to give the
protection that they would if the Resort were at ground level. So, we need to go to
a fully shielded model and no street lights.
LUKE:
Thank you.
DALY:
Any other questions of this witness? (No response) Ok, I think Mara Stein, is that
right? (Ms. Stein stated yes) You are the last witness.
(Catherine Morrow stated off the microphones that Caroline Goebille was gone)
MARA STEIN:
My name is Mara Stein, I live 65765 Highway 20. Just initially, I would like to
welcome Commissioner Clarno to the Board of Supervisors. It is wonderful to
have your input here, for even a short period of time.
LUKE:
You are not from here are you?
STEIN:
Not long.
LUKE:
Typically, people who say "Board of Supervisors" came from southern...
(unintelligible word)
STEIN:
Oh no, caught! Divulged ...Not that long but enough to recently be one of your
appointments to the County Board ...County Planning Commission which I am
very privileged to serve. And it is that regards that I just want to make one
important comment. Obviously, as Planning Commissioner, our job is to be able
to provide a vehicle for public access, public input, which I think we all take very,
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 87 of 118 Pages
very seriously. Certainly, I commend this process the same way. So there is one
issue that again, has so many serious ramifications for the future of Deschutes
County which is obviously water use. I want to be able to make, for the record, it
known to every one that we are having the...Planning Commission is providing a
vehicle on Thursday, January the 12`h for our Planning Commission meeting at
5:30 p.m. on water issues for Deschutes County. At that time we will have a fairly
extensive panel representing City, County, State Water Resources Board, Water
Watch, City and County Works, etc. So, very comprehensive with hopefully a lot
of information for people that can come. Again, as we do the planning and we
have the process in place, I want to make that as far as public record.
The other thing, if I can just indicate, we have an opening on the Planning
Commission. So, if we have interested community people that might be interested
in applying, please do that through the County Planning Department.
LUKE:
They are usually by districts though so you have to make sure you live in the
district.
STEIN:
There will be announcements, I am sure, through the Planning Department in the
paper. Anyway, thank you for your time and the good work that you are doing.
CRAGHEAD:
May I make a clarification for Ms. Stein on the record. Although you are talking
about the Planning Commission you are here on an individual capacity and not that
the Planning Commission voted to have you represent them. Is that correct?
STEIN:
Thank you, exactly. I am here as a resident but sharing that information. Thank
you.
DALY:
I have another question too. You are signed up as an opponent.
STEIN:
There was no other place to sign up, so thank you Commissioner Daly. I do
appreciate saying that I am not here as an opponent nor a proponent. Simply to
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 88 of 118 Pages
provide important information on County Planning and one of the vital resource
areas that we have. Thank you.
DALY:
Ok, thank you. I think that is all of the witnesses. Is there anyone else out there
that has not signed the sheet that would like to testify? Now we have...
LUKE:
You have a hand.
DALY:
Oh, we do have a hand.
(A person spoke up from the back and said she would very much like to testify)
DALY:
You were represented by the attorney earlier and I think we ruled already that
(Again, from the lady in the back of room)
Yes but as I recall there substantially more than half an hour granted to the
proponents testimony. It was more like an hour...
CRAGHEAD:
This is not on the record, so I will repeat for the record. Ms. Gould is saying that
she thought there was more testimony on the applicant side than the half hour. But
I will remind that the rules were that any questions from the Board did not count
against any particular person's time. I believe that it did not go beyond the
applicant's time, they did have nine minutes leftover. All the rest was from
questions from the Board. If there is going to be any more discussion, it needs to
be on the microphone.
NUNZIE GOULD:
For the record, Nunzie Gould. The concern I have is that more time has been
granted to the proponents of this project through testimony you received through
their paid consultants. Additionally, if you are not going to grant me an
opportunity to testify, then I would ask that their rebuttal be denied on this topic
because, in fact, they extended well beyond nine minutes of what was a portion to
their first attorney Mr. Livingston.
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LUKE:
I disagree that they have gone beyond their limit. We have a very good time keep
here. The one person that we did pick out who was under contract with them, we
made it very clear that that was not allowed. There were about three or four other
people who were signed up as proponents who were in the same position and
decided not to testify. So, I don't think that the applicant has gone over the time
limit.
DALY:
I am Chairman of this Committee and I am denying your request. We are going to
allow now for applicant rebuttal...
LUKE:
I'd...
DALY:
God Damn, Dennis will you let me finish please?
LUKE:
I have one more person to come in...
DALY:
Alright, what do you have?
LUKE:
I would like to ask Kyle Gorman to come up. Come on Kyle. You are going to be
sorry you walked in here aren't you? I can't talk to you about this off the record so
I'd like to ask you on the record.
KYLE GORMAN:
I am Kyle Gorman, I am the Region Manager for the Oregon Water Resources
Department, South/Central Region.
LUKE:
Both the Central Oregon Irrigation Districts in Deschutes River Conservancy
talked about water. Although it has been clarified that it probably was not the
decision of the Hearings Officer, it might have been a little different than that, but
of the County in general, not this application but of the County in general of
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Tuesday, December 20, 2005 Page 90 of 118 Pages
requiring the developer to purchase the water and have the water rights in hand
before they can move forward with their application as opposed to going through
the application process and then either as a condition of approval or some other
thing that the County works out requiring them to get the water as needed. Any
thoughts on that from one of the leading water experts in this area.
GORMAN:
Well, you are delving into department policy. I can comment on the technical
nature of applications, how they are processed and how the department approves
them but as far as whether or not the County should go about the way they do their
business as opposed to the departments process, I probably should not comment at
this time.
LUKE:
Ok, I just can't talk to you about it later until there is a decision made. So, I just
wanted to see if you had any thoughts on that when you came in. Thank you.
GORMAN:
Ok, thanks.
DALY:
Ok, do you have anything else, Dennis?
LUKE:
I am done.
DALY:
Ok. I see a hand up back there but you have already testified sir so I don't think I
am going to give you any more time. I am sorry, your time is up, you have already
testified. We are now going on to the applicant rebuttal. I believe the time is how
much? How much do they have?
TIMEKEEPER:
They have nine minutes left, nine minutes and twenty-five seconds. And I believe
they get a half hour?
DALY:
You have nine minutes left on your time for rebuttal if you would like.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
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Unknown voice from the audience. Could we have a minute to settle in please,
before we start?
DALY:
Thank you. Who gets to talk? (Applicants rebuttal)
MARTHA PAGEL:
For the record, Martha Pagel, with Schwabe, Williamson, & Wyatt on behalf of the
applicant. I am going to start with just a very brief response to some of the water
issues that have come up in the testimony. You did hear a lot of comments. I
don't think we heard anything today that had not been raised before but there are
still issues that are obviously of concern to folks. One issue came up about the
amount of mitigation that was being required. I can report to you in the materials
that you have in the record will demonstrate that the applicant submitted an
application to Water Resources Department and Water Resources Department sent
back to the applicant a quote "notice of mitigation obligation" that said how much
is required. That's how much we have used as the target number. You have also
heard comments about temporary credits versus permanent credits. I think the
testimony from the Deschutes River Conservancy was an attempt to try to clarify
that temporary credits are ok. It is a way of providing mitigation, you just have to
go about it differently. But, in this case, I just want to be clear that from the outset
we proposed and got a contract for temporary credit only as a bridge. It was a
good faith, it was to get us started. We have now delivered to you more
information today that has been entered into the record to show that we have lined
up the options that would allow us to secure permanent mitigation.
You have also heard additional comments about impacts on wells and as I testified
earlier, the expert testimony and evidence that you have on the record, is all
consistent to say that there is ground water available for the project. The proposed
wells here are not expected to have any adverse impact on the neighboring wells.
That came from the Water Resources Department, from the applicant's expert, and
from the opponent's expert.
So, just to briefly conclude that the issues that the Hearings Officer raised for you
was the question of have we shown that there is adequate feasibility for obtaining
mitigation. I think there might be questions about what was meant by that and that
is certainly an issue that we could use further clarification on. Any developers
could use clarification from the County but for purposes of Thornburgh, whatever
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Tuesday, December 20, 2005 Page 92 of 118 Pages
it is, I think that we provided evidence to show that we do have actual access to
mitigation credits through these option agreements.
DALY:
Ok.
PETER LIVINGSTON:
This is Peter Livingston. We will be submitting rebuttal material in writing. I am
not going to touch on every point that was made, particularly since the Board has
asked everyone to focus on just three issues. A lot of the comments went well
beyond those issues. On the subject of the two resorts, Mr. Dewey has tried to
portray this as a residential community attached to a destination resort. That is a
false picture. The substance, the focus, the balance, the essence of a destination
resort is this overnight lodging, the reservation system and the hotel. That as we
explained is all going... for the entire resort, will be managed by Thornburgh
Resort Company in the first instance and by any successors who are completely
bound to continue that process in the future. So, it is one resort.
On the issue of traffic I would draw your attention to the applicant's final
argument, it has been included in your notebook pages 44-47. We have carefully
worked through the law on this and the Hearings Officer has agreed with our
analysis. Indeed, we have proceeded according to law and have done exactly what
we are supposed to do which is make an agreement with ODOT that at the time
they decide to make these improvements the money will be there.
On the question of investors, the criteria we addressed are in 18.113.070 C 1 and 2.
Both of those criteria focus on whether or not the necessary financial resources are
available. That is all they ask. The more investors we have the better we have
satisfied those criteria. So, if we have not listed every investor and every
investment, that is in fact good, because that means that there are more people with
more money that are making it a successful development. There has certainly been
no effort done to conceal anything. We have to focus on what the criteria require,
not on what any one citizen would like to know. So our task has been very
complex as it is. We have a lot of criteria to address and we carefully have done
that working within those criteria. If other people would like to see different
criteria, we all know the proper process is to come to you the Board and ask you to
change the code. Not to enforce a different code at the time someone comes in for
an application.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 93 of 118 Pages
That leads me to my final point which is this. In 1992, as explained to me by an
attorney of A Thousand Friends of Oregon, whom I consulted when I became
involved with this process ...In 1992 there was a process involving all of the stake
holders to discuss where the destination overlay should be placed. Everyone had a
chance to participate, Thousand Friends did participate. When I spoke to her she
said go for it. It is done, the overlay is there and you have every right to proceed.
We did, we relied on that overlay, we read the code, we read these criteria, and we
also went to the applications of every other destination resort we could lay our
hands on in Deschutes County. We started with those applications that was our
base line. Since then we have gone well beyond what those applications did in
terms of providing more information, more detail and more expertise. We have
also invested a good deal of money, time, effort and expertise in meeting the code
requirements appropriate for this particular zone. It is not appropriate for the
residents that are offended by the zoning to challenge us on that basis to say that it
should be turned into farm land again.
I want to address the issue of open space because that is one of our three issues.
The suggestion that this become a conservation easement has a certain superficial
appeal but there are some land use issues that are involved with that. One is that
you should not bind all future Boards to this particular development. The time will
come, I don't know when it is, but when it will be appropriate for the County, for
the property owners to reexamine the uses that are occurring on that property. If
that time comes and half the property is tied up with a conservation easement, you
are going to end up having to make decisions based on that. For example, you
won't be able to increase densities in that area because you'll have this forced
easement there. What we are doing is saying, we want this to be open space. We
are giving you every means there is to enforce that through the CC&R's, through
your land use rules but, if you choose to change your rules in the future, as you
may well do, because circumstances change.... If the legislature changes the law
then it is wholly appropriate for you at that point to take a look at this property and
consider it for a new use. So, the conservation easement is not a good suggestion
in this case.
A lot of questions came up about traffic. We do have our traffic consultant here.
If you have any specific questions for him he is here to answer them. It does get
rather annoying to hear someone making the same false allegations over and over
and over and be unable to respond. I really encourage you to ask your questions.
I'll just leave the rest to future briefing. Thank you.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 94 of 118 Pages
DALY:
Do you have any questions, Commissioner Luke?
LUKE:
You are all done? You don't get any more time if your done.
LIVINGSTON:
I am done.
LUKE:
Martha I know down in La Pine that there are a couple strata's down there. If you
drill a well somewhere in the unincorporated community of La Pine you will hit
methane and different things but if you move out to the east a little bit they
dropped water there that you could probably bottle. Do you know what the strata's
are around this development as opposed to towards White Rock and that kind of
stuff. Have you figured out if you guys are on the same area?
MARTHA PAGEL:
Commissioner Luke I can not answer that question but we can look at the record of
our... maybe David Newton can help us, our water expert.
LUKE:
You have an opportunity to rebuttal on the record for the next seven (7) days. If
you get it fine, if you don't I was just curious if you have looked at that.
CRAGHEAD:
Although, I believe that would be new evidence and not rebuttal evidence so she
should answer here at this hearing.
LUKE:
She can't do it.
PAGEL:
I don't know if it is helpful to know but we do have a lot of information that is in
the application and Mr. Newton could address your question of what he did find in
investigating the geology at this location if that is what you are looking for.
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Tuesday, December 20, 2005 Page 95 of 118 Pages
LUKE:
For the record, I am going to want to know some things about the Juniper trees and
the number you are going to cut too. That would be my second question.
DAVID NEWTON:
Commissioner's...
DALY:
And your name sir?
NEWTON:
David Newton
DALY:
David Newton?
NEWTON:
Yeah, at 521 S. W. 6th Street, Redmond, Oregon.
LUKE:
You have Newton Pump?
NEWTON:
That is my family. I am allegedly conflicted with but yeah, I grew up in Redmond
and I am the owner of Newton Consultants. My specialty is water resources and I
am involved in a lot of extensive basin planning in the Deschutes dealing with
water issues, the irrigation districts, and so forth, and so forth. We did conduct an
evaluation of the Thornburgh's site and the adjacent areas. We looked at 96 well
logs in the surrounding area. Your question, Mr. Luke, would you restate that for
me.
LUKE:
Well, like in La Pine, the wells in the greater La Pine unincorporated community
are in a different water strata than when you go to the east. I was just wondering if
the wells down around White Rock Loop and those areas were in a different strata
than where Thornburgh is. Do you have any idea on that.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 96 of 118 Pages
NEWTON:
Basically, what we find, the strata is somewhat different. At the Thornburgh site
we are on what they call a ryalactic dome. It is a rock, a little bit different
composition than the typical than the typical lava flow you see out here that is
intruded up through this lava plane. It is highly fractured. The ground water
system is consistent through it though because of the fracture systems. We don't
have a lot of real distinctly different zones. There's some shallow water bearing
zones up above our target well depths that the regional aquifer system is fairly
consistent through the area. You don't see a lot of differences in head or water
quality... so... consistent in the high yield system.
CRAGHEAD:
For clarification Commissioner Luke, you are asking the question because of the
opponent's testimony about the possibility of affecting the neighboring wells?
LUKE:
Yeah.
NEWTON:
That point that was raised, White Rock Loop, I don't know exactly how far it is
from the site. It's probably two miles or on that order. We worked on the Eagle
Crest wells and we used that information to evaluate the potential for well
interference. The last Eagle Crest well we did we pumped it about 1150 gallons a
minute and we drew it down about 1.67 feet, about this much (hand gesture) We
had an observation well 35 feet away and the water level dropped in it one inch.
The point is the aquifer systems are highly trans-missive. So, the influences are
local to the well sites.
Furthermore, we looked at Redmond's wells, we looked at Bend, we looked at
several high capacity wells and we find the pumping affect is very local. I think
the farthest out we found was about 1.8 feet at around 800 feet away where it
actually caused a minor cone of depression. On our site the nearest off site wells
are about V4 mile from the site up on the north end. That is 1320 plus or minus
feel. The other wells are farther than 2000 and up to more than 4000 feet away.
We are going deep, we are below the river level in what we call a regional aquifer
system. So the influences will be local and we would not have an impact on these
other wells. When you look at the basin as a whole, Bend and Redmond are heavy
pumping centers. It is all ground water but we don't see influences by that
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 97 of 118 Pages
pumping. What does that mean? It attests to the yield capacity of the aquifer.
You get very little drawdown, a lot of capacity.
LUKE:
thought Bend pulled part of their water from the Watershed.
NEWTON:
Part comes from the watershed, yes, but they are still pumping. A lot of that is
ground water, essentially all of Redmond. So, when we looked at that in our Eagle
Crest experience and Black Butte and Broken Top in Bend, you don't see a wide
spread influence that interferes with other wells. The Water Resources Department
in the Deschutes Basin Aquifer System has regulated only one well to my
knowledge and that was up in Madras because of an interference on another one.
Otherwise, you just don't see those kinds of issues here.
LUKE:
How deep are the wells at Eagle Crest?
NEWTON:
The last one we put in was 800 feet.
LUKE:
Thank you.
DALY:
I have a question. There is testimony here from some lady that indicated that over
the years that the well had dropped or the water table had dropped due to the
number of wells in the area. Is that true? Have you been able to determine that the
water level is lower now than it was say, ten, twelve years ago or twenty years
ago?
NEWTON:
There have been declines in water levels. Newton Pump Company, they have
lowered the pumps in domestic wells northwest Redmond and other areas. A lot of
those... I think the testimony she was told...
LUKE:
She would have to go to 800 feet.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 98 of 118 Pages
NEWTON:
Yeah, she would have to go to 8... Most of these have been lowered are probably
between 5 - 20 feet. A lot of those wells too are relatively shallow. Three hundred
feet is shallow in the basin. A lot of the wells that I have knowledge of that were
lowered were drilled in the 60's. Some of those pumps I put in there with my dad
back then. Domestic wells, you know the drillers...,Wells are expensive so they
don't want to drill any deeper than they have to. So, they'll get enough water
where they think it's good enough to serve a household use. What we're seeing
now, we're in a drought cycle, and what we're seeing is these are fluctuations that
are tied to the drought and the climatic cycles.
The U.S. G. S. pointed that out that the drought cycles here have far more affect
than the ground water pumping. When we are in these shallower zones there is a
lot of other things that have changed in the basin. Irrigation practices have
changed and some of the conservation projects are changing the availability of
some of the water locally that I think that helped sustain some of those shallow
wells over time. When you get down into the regional aquifer system that ...like
Bend and Redmond, Deschutes Valley Water District, and some of the municipal
suppliers that are pumping from, you don't see those changes. You see the
climatic fluctuation but over the long term you don't see a downward trend. It is
fairly level, with the dry cycle water level drops, wet cycle it comes back up. So I
think what you are seeing is more the impact of drought and probably irrigation
practice changes and those things on some of the shallower wells.
DALY:
Thank you. Any other questions?
LUKE:
Not on water. Martha did you want anything else on this? (Could barely hear from
the background - no)
LUKE:
Does your forester guy want to come up. The attorney will answer it. About the
forestry practices and what you are going to do out there.
DALY:
And I would also want to hear from the traffic person too. (Fine, he is right here)
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 99 of 118 Pages
PETER LIVINGSTON:
The question you are asking goes to the criterion which is 18.113.070 sub e,
important natural features including but not limited to significant wet lands,
Riparian Habitat, and landscape management quarters will be maintained.
Riparian vegetation within 100 feet of streams, rivers, and significant wetlands will
be maintained. Alterations to important natural features including placement of
structures is allowed so long as the overall values of the feature are maintained.
What we have said in our materials... we have not done an inventory of the trees
and we really can't tell you how many we will cut down because that is something
we won't know until site plan review when the different structures are being
proposed and being reviewed. What we have said and what we will do, is
whenever possible, we will preserve significant trees.
The reason we will do that is not because of a code requirement, which doesn't
mention the trees, but because it serves our purposes to do that. People will find
the resort more attractive if we preserve the natural landscape. That is one reason
why we have kept the density as low as we have. So, every effort is going to be
made to preserve the trees and to insure that you could suggest a condition that
would ask for it and ask that at the time of site plan review that every effort be
made consistent with reasonable development to protect the trees. But, it is really
difficult to answer your question with a number.
LUKE:
I would like to point out we have heard stories of Jack Nicholas actually moving
trees, Juniper trees in Pronghorn.
DALY:
They actually did. I saw...
LIVINGSTON:
That may be the way to go.
LUKE:
They do a lot, more than to just make the development look good, they also help
hold the soil and do some other things.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 100 of 118 Pages
LIVINGSTON:
I think there is a commitment from top to bottom to protect the environment to the
extent possible, consistent with some development. The development is being held
down to a fairly sparse, non dense development.
DALY:
Thank you. Do you have any questions of this witness, any of you?
CRAGHEAD:
I do.
DALY:
Ok.
CRAGHEAD:
Some of which, you can just put in your rebuttals, I won't make you answer here.
One of which is the issue of the dust during construction in terms of whether or not
the vegetation is sufficient I don't know if you have answers since I have not had
a chance to read this ...and again, you can put that...
LIVINGSTON:
I can respond now and I'll give it some more thought and respond in writing as
well. During the briefing process, so somewhere in your notebooks, there is a
discussion of that issue. What we told you is that there are certain standard
approaches that are taken and we will employ those. To refine that process and
come up with a specific means of controlling dust, controlling erosion, is
something that has to be done on a site by site basis.
CRAGHEAD:
Sound good. The reason why I asked some of these questions is because ...as
Catherine Morrow said the record is the size of four year old so I have not yet...
LIVINGSTON:
You don't know every word in the record?
CRAGHEAD:
I don't know every word in the record. Your last submittal when you talked
about... Talking more about traffic impacts, I am assuming it covered the case law
on it that it would cover the case law that talks about ...that even though a traffic
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 101 of 118 Pages
facility is failing, that if you are going to make it worse, the County would have the
right to ask you for mitigation and you talked about it a little bit briefly earlier
about the fact that... making the agreement with ODOT about the funds available
and that sort of thing. I am assuming all that is addressed in this documentation.
LIVINGSTON:
It is a complex issue and the legal issues are very complex because they involve
the amendment of the State Rules, not once but twice. We were... When we filed
our applications the State Rules had just been interpreted by LUBA to be, and I
believe maybe the Court of Appeals to be, very severe in terms of requiring
immediate mitigation to keep traffic always above a certain level. The State Rules
subsequently have been amended but we're now... we're still under those severe
rules. We're really looking very closely at the legalities here. What we have
discovered is that the State Rule applies only when you are asking for an
amendment to a comprehensive plan or the comprehensive plan taxed. As you
know, we are not doing that. We're just asking for a conditional use. So, the State
Rule does not apply.
There is language in the County Code which seems to parrot the State Rules. But,
in the past, the County has interpreted... there has been an allusion to the Coos
County Case. That's the case that governs the language that the County presently
has in its Code. After that case was decided the State Rules were amended, as I
said, to be more severe. The County did not amend its Code. In the Eagle Crest
decision, the County clarified that it was not going to apply the more severe State
standards to an application that did not request a comprehensive plan amendment.
That is all in that discussion. Good Luck!
CRAGHEAD:
Thanks. Testimony when I heard from Marianne Fellner talking about the
hydrologies, the sanitary treatment plants, and all that. It brought up an issue to me
about the fact that I had not heard from either in discussion as to how much detail
is really necessary for a conceptual master plan vs. a site plan. You've alluded to
some of it and don't need to talk about it now but it might be something to put in
rebuttal for either side.
LIVINGSTON:
I would like to talk about it now because I think it is something that the
Commissioners should be aware of. This is a very tricky issue for an applicant
because the conceptual master plan standards are sometimes apparently very
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 102 of 118 Pages
specific, other times less specific. To meet them, to some degree, the County has
to call how strictly they want to require, how far they want to push that
requirement. Sometimes, at least in my view, it is very clear that it doesn't make
sense that the conceptual master plan require enormous specificity. If you do that
then there is no purpose in a site plan review. You have to realize that the way this
is structured, there is a final master plan which implements the decision in the
conceptual master plan, that calls in a lot of detail. Then, subsequently, there is a
subdivision application which brings in even more, and finally there is site plan
review.
Somewhere along that process, if there is a clear way to answer the question such
that it does not undermine the standards... so, that there is no way to deviate so
they go off in a strange direction that would undermine what is intended by the
conceptual master plan. As long as that is true, it often makes more sense to leave
the details to the subsequent process. We have given you a lot of details in the
conceptual master plan.
CRAGHEAD:
Thank you. You touched upon the issues of the conservation easement that
Brenda Pace raised. If the conservation easement was with Deschutes County and
Deschutes County would always have the right to abandon it in the future, just as a
brainstorm, would that be possible, something that the applicant would consider?
LIVINGSTON:
I think the applicant would consider that but I would caution you because, I think
that ...for one thing there ...and one reason why the applicant might not find that
appealing is if, for example, the golf course needed to be redesigned, if it were a
failure, if it were necessary to redraw the boundaries, move that open space from
one place to another to make it a success. If you have a conservation easement that
has a meets and bounds description that locks you in to an exact space.
CRAGHEAD:
Except for the fact that the County could always abandon it.
LIVINGSTON:
Well, it's not clear the County would and it's also something the Code requires. It
is asking for more than the Code asks for. All the State law, all the Code requires
is that at all times there be 50% open space.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 103 of 118 Pages
CRAGHEAD:
Ok, thanks. The other issue was would the applicant be agreeable to the condition
that was raised by Mr. Winch regarding no access to Barr Road?
LIVINGSTON:
That one is tough because, I don't have it in front of me but, in one of these
exhibits you will see that there is actually a street plan that extends across Barr
Road into the portion of the resort that is to the west, I believe. So, you are going
to have to have a crossing there. I can't figure out a way you can prevent anybody
crossing there, from taking a right or taking a left on Barr Road. But you can do,
you can make Barr Road so unattractive that it would not make much sense for
people to do that. That's really what we are saying. Barr Road, as I understand it
now, is not very accessible to vehicles. It is a rough road and somebody just going
out along there driveway and out to the Highway is not going to want to use Barr
Road. In my experience with traffic engineers, generally, they don't use force as
much as they use inducements.
LUKE:
At Pronghorn, they simply took the road on the outside of the development, they
moved the road.
LIVINGSTON:
For example they moved Barr Road outside the development.
LUKE:
Yeah, if you moved it a little bit to the west you simply would move it off the
development.
LIVINGSTON:
Now you are over my expertise. I don't know if you can move road on BLM land
to another location. I just don't know.
DALY:
It would be tough.
LUKE:
BLM completely surrounds Pronghorn.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 104 of 118 Pages
LIVINGSTON:
I don't know if that is an option.
DALY:
Anything else, Laurie?
CRAGHEAD:
No, thank you Mr. Chair.
DALY:
I would like some information on the traffic studies. I am a little bit unclear.
There has been an awful lot of testimony about the Cook Interchange in Tumalo. I
guess there's ...I know there's... Has a study been done on the interchange, on the
126 Interchange, which probably would get most of the traffic, at least people
coming and going from outside the area. Could you elaborate a little bit about
what studies have been done on both of those intersections.
CHRIS CLEMOW:
Hi, for the record my name is Chris Clemow, I am with Group McKenzie, our
address is 0690 SW Bancroft Street, Portland, OR, 97239. Within the context of
this study and similarly the Eagle Crest studies, yes the interchange at both 126 and
Cline Falls Highway and the interchange at Cline Falls Highway and 20... or Cook
Avenue and 20 were both extensively looked at. As a result of the initial Eagle
Crest work that was what precipitated or resulted in the construction of that
interchange. Additionally, the County...
DALY:
Which one are you talking about the 126?
CLEMOW:
I am sorry, correct the 126 Interchange. Even within the context of the study that
we are now looking at during this course of this last year, the County realigned 74t"
Street and it changed what was going on up there. It changed kind of during the
course of this, we had to do some additional traffic counting to get some more data
up there. So, yes, that interchange has been looked at substantially. Again, as you
ask this question, both of these interchanges are essentially ODOT facilities and
they are the governing, or the affected, road authority. The County is the
reviewing road authority. The distinction there being who's ...kind of who's
system is precipitating or necessitating the infrastructure improvements. It is the
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Tuesday, December 20, 2005 Page 105 of 118 Pages
ODOT facility in both cases. The Cook Avenue Interchange has been, as you
probably even gathered from today's hearing and the reams of documentation that
has been submitted, that has been a hot issue. To quickly go into this, there was an
illusion today of what the volumes were counted there in the past and what we
counted. I will point you here to the Eagle Crest study. Within the context of that
document, there are some figurers here...
DALY:
Is that in the record?
CLEMOW:
Yes, that should be in the record from previous stuff. There is a count here, and
particular issue is the southbound left turn movement because that is really the
movement that's causing the issue and it is failing, without a doubt. In this figure,
which is labeled 1999 existing traffic volumes, in August, there is 145 southbound
left turn movements. I might add that that...
DALY:
One hundred and forty-five in a day?
CLEMOW:
No, the peak one hour period, which is in the afternoon. What time in the peak is
that specifically, I am not sure. It is between the hours of 4 and 6 p.m. Some one
hour period between that. I might specifically point to you that that was not the
volume of traffic actually counted. The actual volume of traffic counted, which is
on their data sheet in the back, for that same movement, was 83. What ODOT has
you do, and this is a State agency vs. the County and this is really pretty much
specific to State facilities. But they have you apply a factor to the volumes that
you have counted to correct it to the 30th highest hour volume. The idea here is it
gets it kind of their design hour. So, what happened is, when Kettleson did these
counts in February, they had to correct it to the peak 30th highest hour. What they
have to do then, is that you have to use...ODOT has count stations established on
the State Highway system, that you then basically find the closest one and you
calibrate your count based on that. At the time, the closest count station was on
Highway 126. Basically, at 242 where it comes in west of Sisters, and the peak
month there was August. So they had to correct the February count to August and
they had to apply a 91 % correction factor to that.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 106 of 118 Pages
I am going to read a real quick excerpt, this material is all in the record also that
was previously submitted from the hearings official. But here's... straight out of
the ODOT manual it says "to avoid seasonally adjusting by more than 30%, a
factor greater than 30% represents a count that is not taken at or close to the time
that the 301'' highest volume occurs. Using a winter count with a high seasonal
factor to represent a peak summer, will probably not represent traffic turning
movements well because driving patterns change in the winter vs. the summer."
That is a direct quote in ODOT's manual on what not to do. That was done in the
case. I am not faulting that study. The issue they had was...and as traffic
engineers get faced with this a lot, what do you do when you only have a February
count. It is usually the best thing you got. What happened during the course of our
study is we not only obtained counts later in the spring but we ever ...now, I guess I
can also go further with this and tell you that ODOT has sense established an
automatic traffic recorder on Highway 126 five miles north of Tumalo. So, it is
real close now, it is not on the other side of Sisters. So, we used data from that
new...
LUKE:
For the record, 126 goes from Redmond to Sisters, Highway 20 goes from Bend to
Sisters.
CLEMOW:
I am sorry, you are correct ...on Highway 20.
DALY:
Where?
CLEMOW:
Five miles north of Tumalo on Highway 20. We used the data from that traffic
recorder to calibrate our counts. The data on that recorder now indicates that the
peak month is in July. So, our previous counts we adjusted to July but then we
also obtained counts during the peak time in July that did not have to be adjusted.
So we, basically, were able to count everything during the peak month which is by
the agencies perspective that is the most correct thing that you can do because you
are then having to adjust everything seasonally. Quickly then, this was not quick
at all, when they counted the volumes in March of 1999 they counted 83 cars.
When we counted them in July of 2005 counted 98. So, that is the number that we
did not have to seasonally adjust. It gets then to speaking to the issue of the fact of
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 107 of 118 Pages
why there is such a discrepancy. The fact that discrepancy exists is because they
were relying on counts that did not occur at the peak.
DALY:
Ok.
CLEMOW:
Now, to get to the other part of your question, the southbound turning movement is
failing, without a doubt. We are contributing a significant portion to that. We
have entered into an agreement with ODOT that is consistent with the agreement
that Eagle Crest did where we basically are contributing a proportional share based
on our impact. Actually, in kind of... ironically, the lower the background count,
the higher are proportional share. So, every time we went out and counted cars and
came up with fewer, our contribution just kept getting bigger and bigger. One
gentleman alluded to something of $7,000 dollars, which is incorrect but using
some of the original data, our original contribution was a little over $200,000. We
subsequently have gone back and counted, and again, every time we come up with
a lower count, our contribution gets higher. Today now, we are at $500,000
dollars of what our contribution for proportional share of the fix is. Again, the fix
has been defined as an interchange and that is specifically outlined in the
Deschutes County Transportation System Plan and that is the mitigation.
Understandably, the $2 million dollars that have been identified to construct that
may not be accurate but that is what we have. We cost index that to the current
year to come up with a current construction cost and then figure to proportional
share of that based on that movement which is...ODOT...we spent months on this
and ODOT and the County have both been accepting of that.
DALY:
I guess the bottom line is at present time, you are contributing a half million dollars
toward this interchange and future interchange based on your use or projected use.
Now is there anything on the other end.
CLEMOW:
There are improvements yes, there are, not at that interchange. This gets to
larger issues of our access to Highway 126 itself. Within the context of the
transportation analysis, we assumed that we are going to have access to Highway
126 from Eagle Drive which was already in use and has been constructed by Eagle
Crest. As a condition of their development, ODOT required that a left turn lane on
126 be constructed and a right turn deceleration lane when it was warranted.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 108 of 118 Pages
Based on Eagle Crest's development today, it has not yet been warranted and
therefore those improvements have not been constructed. We are proposing to also
use that and as such, we have agreed to construct those improvements and those
improvements have been found to be sufficient by ODOT to mitigate their impact.
DALY:
Those improvements, is there a dollar figure attached to those.
CLEMOW:
We had some preliminary construction costs but because we are wholly
responsible for the entire improvement, the cost isn't really the issue, we have to
construct it.
DALY:
You are not sharing that with Eagle Crest, you're actually going to do that
yourself?
CLEMOW:
Correct.
DALY:
And you have agreements with ODOT to do that, proposed agreements?
CLEMOW:
Yes, it was even a condition of approval that we construct those.
DALY:
But the other actual interchange on 126 that goes to Eagle Crest, is there anything
that is going to be required there?
CLEMOW:
No, there is not.
DALY:
That's fairly new, it should last for awhile. Ok, that's all the questions I have.
LUKE:
I have a question. Do you know what Eagle Crest contribution was to Cook and
Highway 20.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 109 of 118 Pages
CLEMOW:
I have it in my files.
LUKE:
Roughly, any idea.
CLEMOW:
Was it $200,000. Something like $200,000...it should be in the records
specifically what they contributed.
LUKE:
I want to point out though, even though Highway 20 and Cook Avenue is an
ODOT... Highway 20 is an ODOT facility and so is 126... Just like the Parkway
going through Bend, all the roads that tie to the Parkway are either City or County.
Highway 20 and 126 is the same way so, if Highway 20 is failing at Cook, Cook is
ours and so those are our responsibility and the County as well as ODOT would
contribute to any fixes there as well as anybody else we can calculate have an
impact on that area. It is a lot bigger picture than just ODOT.
CLEMOW:
Understood. I will also, to your point, it is the fix, being the interchange, it is
actually on the County's TSP, it is not on ODOT's plan so the County has
identified that but our money's are going to that specific project.
LUKE:
Hopefully it is on ODOT's plan because otherwise it is difficult to collect the
money for that project. I understand. I was here when we went through the Eagle
Crest one and they were not real happy about having to put money into Cook
Avenue but they did, as well as build the interchange on 126.
DALY:
Good, I am glad to hear those comments because I was totally unaware of the
amount of money that was being proposed. Ok, is there any one else who wants to
comment, questions, staff comments is up next.
(Gentleman from audience said he had a question)
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 110 of 118 Pages
DALY:
Alright.
LIVINGSTON:
I have a question related to this order. It identifies the issues the Hearings Officer
used as the basis for denial. We, of course, endorse all those people who testified
that the Hearings Officer did a great job. We think she did a good job with respect
to most of the issues, but those three, we didn't feel she did a good job, or there
was more evidence we could furnish. My questions is that essentially you have
established four areas where the hearing will focus and one is the creating of
appropriate findings to address those issues that were not addressed or not
sufficiently addressed by the Hearings Officer. The reason that comes up is that
when she denied the application she did not provide conditions. She simply, that
was it. If the decision is made to approve, then there will be a need for conditions
and we would suggest also, more elaborate findings. We discussed with staff that
we would be happy to help with that work and try to prepare more adequate
findings and discuss conditions and so forth.
DALY:
I believe staff has a list of suggested conditions in the staff report.
LIVINGSTON;
You may find also that there are additional conditions stipulated to and the
materials you have received from us and possibly you have other conditions you
want to think about.
DALY:
Ok.
CRAGHEAD:
Just for the record, I would like to point out that it is standard procedure in land use
hearings that if an applicant or opponent is represented by legal counsel... So, if
the Board decides in favor of an application it is standard procedure too have the
applicant's attorney to draft the original draft. It is always reviewed by County
Legal Counsel before it ever gets to the Board of County Commissioners, however.
LUKE:
In many cases County Counsel makes changes in those prepared findings.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 111 of 118 Pages
CRAGHEAD:
On most occasions.
LUKE:
Can I ask staff a question? We are scheduled for the order hearing in January,
Work Session Decision. Is there an opportunity for Work Sessions between when
their final arguments are presented and when we are scheduled to do a decision and
also, if we get to then the day the decision is supposed to be made and we are not
ready to make a decision, what are our options.
CRAGHEAD:
First question, can you meet in between the January 3rd date, the last date for our
applicant's final argument, and January 10th when you are required to make your
decision. You have an option for another Work Session in between there to
discuss it again. That would be a public meeting, the public could come to it, but it
would not be a public hearing so, you would not be able to take any public
testimony at that.
LUKE:
How about notice?
CRAGHEAD:
Not necessary for notice because it is deliberation time, it is not a public hearing.
As for not making your decision by January 10th, you don't have an option.
LUKE:
Yes, we do. If you don't make a decision then there's a lot of options for the
applicant, but we have the option to not make a decision which then triggers the
applicants other options.
CRAGHEAD:
Because the agreement as per the order was that you would make your decision by
January 10th. Yes, it would be the applicant's other options.
LUKE:
Right. To say we don't have a choice is inaccurate, because we always have a
choice.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 112 of 118 Pages
CRAGHEAD:
That's right. Thank you for your correction but the option would be the applicant's
on whether or not they want to make re-argument on whether the writ of
mandamus was actually an option at that point.
DALY:
I could be sick that day. (laughter from the audience)
LUKE:
I am still a little upset that Paul did not challenge me so I got to go away.
(laughter from the audience)
DALY:
Ok, staff comments, any other staff comments.
DEVIN HEARING:
Sure, Devin Hearing for the County Planning Staff, exceedingly complex and
emotional issue, Thornburgh, obviously. I would like to call your attention back
again to the areas we were going to discuss today just to kind of leave off:
1. The portion of the Hearings Officer decision for basis of denial. That's
essentially staff input into what has gone on in the past here.
2. Conditions 2 and 3 related more to staff's initial staff report.
3. Issue 2 was the BLM access to the north.
4. Issue 3 was the conditions of approval that we had originally suggested
but that did not get included in the Hearings Officer's decision. We feel
those are still relevant, all twenty of those conditions, are still relevant.
We still hold our position on the northerly access.
That initial staff report however, recommended approval so we're aware of where
we were back then and that the staff has recommended approval with those
conditions. Those conditions addressed our concerns with individual portions of
the application. The Hearings Officer looked at it a different way and addressed
three conditions she felt were a fail. With those inputs from the staff and the
evidence today, we will move forward with your decision.
CRAGHEAD:
I will make one other point. Earlier, Commissioner Luke talked about the
applicant and made it seem that the applicant would have been well within their
rights to go for writ of mandamus. I understand there is an issue on whether or not
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 113 of 118 Pages
that was true and so therefore that issue was, the risk of that was what was weighed
in terms of creating this hearing.
LUKE:
I did not say they would win, I just said they were within their rights to go.
CRAGHEAD:
Even if...If it is even an issue of whether or not they were within their rights.
However, the risk of arguing that point was part of the issue of going for this
hearing.
LUKE:
If the applicant has until January 3rd to submit their final arguments, the only thing
I have on my calendar for, like, January 5th is the meeting with the City of Sisters.
I would like to have a Work Session with Staff and Legal Counsel just to flush
some of these things out. That's not even a week before the January 10th meeting
but I think that would be helpful to me...because we can't talk amongst ourselves
at all unless we are here. You can talk with Staff individually and Legal Counsel
individually but it is nice to get the same answers to all three Commissioners at the
same time. If it could be worked out, and I am not asking to set it today, but
somewhere after those final arguments come in and before the 10th, I would sure
like to have a Work Session.
DALY:
Ok, the 3rd is the deadline for the arguments.
LUKE:
Yes. We could do it after we meet with the City of Sisters, that's all I have right
now on that day is the City of Sisters. We have a Board Meeting on the 4th but that
is kind of quick for staff to analyze the final arguments and get back. Bev would
you like to...
CLARNO:
I am going to a wedding on the 5th in Seattle.
LUKE:
Oh, well then maybe we look at...what day is the lOthq
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 114 of 118 Pages
DALY:
The 5th is our reading with Prineville on the ABHA questions. I know you weren't
scheduled to be on that one.
LUKE:
Oh, Bev is going to be gone so we look at, the 10th is Tuesday...
DALY:
The 6th I am pretty free except for a doctor appointment.
CLARNO:
I am not going to be gone the lOt". Did you say the l Ot"q
CRAGHEAD:
He wants a meeting before the l Ot"
CLARNO:
Before the 10th, ok.
LUKE:
You won't be here on the lOt"q
CLARNO:
I will be here on the 10th
LUKE:
Maybe we can have a Work Session on the 9th. What do you think, Mike? All we
got then is a Work Session and an Administrative Liaison.
CRAGHEAD:
Is that a Tuesday? A Monday, ok.
LUKE:
A Work Session then and an Administrative Liaison at 1:30. We could come in at
8:00 or 8:30 or 9 o'clock, or we could come in about 3:30 and do a Work Session.
LUKE:
Well, we have some time to work on it
work on putting that together.
If that date works, then maybe staff can
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 115 of 118 Pages
CLARNO:
Bonnie is saying that LPSCC is at 3:30.
LUKE:
Then do you want to do it in the morning? We are not looking at time, we are
looking at date. Staff can work out the time but if we don't do it on the 9th, we're
not doing it.
CRAGHEAD:
Ok.
DALY:
We can do it either just before or just after the Work Session.
LUKE;
Yeah. I think it would be nice to do it before then we can always continue it if
staff does not have the answers or needs to do some additional research. You
continue this, or do you adjourn it or what do you do?
CRAGHEAD:
This is the end of the oral hearing and as we said before the record is open for
rebuttal argument and rebuttal evidence. New evidence can come in only if it is
rebutting evidence that was submitted from November 9th until the end of this
hearing today. Rebuttal argument is what is open until the 27th, and then from the
27th to January 3rd is applicant's final rebuttal argument only.
DALY:
Everybody understand. Ok, anything else.
CRAGHEAD:
This hearing is adjourned.
DALY:
This hearing is adjourned.
Being no further testimony given, Vice Chair Daly adjourned the hearing at 2:50
p.m.
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 116 of 118 Pages
DATED this 20th Day of December 2005 for the Deschutes County
Board of Commissioners.
Mic ael M. Daly, Vi e Chair
11117
Dennis R. Luke, Coydmissioner
Bev larno, Commissioner
ATTEST:
Recording Secretary
Attachments - Exhibits Listed in the Minutes
Exhibit A: Opening statement (3 pages)
Exhibit B: Peter Livingston - Thornburgh Resort Conceptual Master Plan and
Conditional Use Application (4 pages)
Exhibit C: Peter Livingston - Letters from Umpqua Band and US Bank (5 pages)
Exhibit D: Steve Johnson - Letter from COID and Proposed Thornburgh Resort
Development Irrigation Plan Application (138 pages)
Exhibit E: Todd Heisler - Letter from Deschutes River Conservancy (4 pages)
Exhibit F: Rob Reavill - Statement Letter (I page)
Exhibit G: Dave Jewett - Statement Letter (8 pages)
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 117 of 118 Pages
Exhibit H: Paul Dewey - Notice of Appeal Letter with maps (larger maps with
CDD), Letters from Neighbors, and Financial Documentation (223
pages)
Exhibit I: Ted Keener - Statement Letter (2 pages)
Exhibit J: Karin O'Banion - Statement Letter and Information from 2005
Holiday Edition of the Bulletins New Home Living (3 pages)
Exhibit K: Marianne Thomas: Upper Deschutes Record of Decision and
Resource Management Plan by BLM - includes maps (268 pages)
Exhibit L: Kathy Yoder - Statement Email (2 pages)
Exhibit M: Marianne Fellner - Audubon International Environmental
Stewardship Guidelines (114 pages)
Exhibit N: Marianne Fellner - Statement Letter (4 pages)
Exhibit O: Jeff Meyers - Statement Letter (3 pages)
Exhibit P: Sandy Lonsdale - Statement Letter and Pictures (6 pages)
Exhibit Q: Sandy Lonsdale - Dark Sky Lighting Material and Bend Golf &
Country Club Cell tower Disguise (58 pages)
Exhibit R: Jim Guild - Statement Letter, Maps, Photos (70 pages)
Exhibit S: Gail Burton - Statement Letter, Maps, Photos (9 pages)
Exhibit T: Martin Winch - Statement Letter (2 pages)
Other Attachments
Sign in Sheets (4 pages)
Public Hearing regarding Thornburgh Destination Resort, LLC Land Use Appeal
Tuesday, December 20, 2005 Page 118 of 118 Pages
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