2006-752-Minutes for Meeting January 25,2006 Recorded 7/24/2006FICIAL NANCYDESCHUBLANKENSHIPTES COUNTY
CLERKDS CJ 10060151
COMMISSIONERS' JOURNAL
0712412006 04;47;46 PM
2006-752
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 SPECIAL WORK SESSION
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, JANUARY 25, 2006
Commissioners' Conference Room - Administration Building - 1300 NW Wall St..., Bend
Present were Commissioners Bev Clarno, Dennis R. Luke and, by conference call,
Michael M. Daly. Also present were Mark Pilliod and Laurie Craghead, Legal
Counsel; Catherine Morrow, Kevin Harrison, Tom Anderson and Devin Hearing,
Community Development; and citizens Nunzie Gould, Linda Swearingen and Miles
Conway. No representatives of the media were present.
The purpose of the work session was to address questions and concerns of the
Commissioners regarding the Thornburgh Destination Resort appeal.
The meeting began at 8:35 a. m.
LUKE:
At the meeting we had the other day, we asked quite a few questions on the final
arguments. Do you have questions for Laurie or Catherine?
DALY:
I don't think so. Have you talked any more about this requirement for the access
points the northern and southern access?
LUKE:
Somewhat.
DALY:
Are you thinking that we need to have that before the conceptual master plan
approval?
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 1 of 21 Pages
MORROW:
I think what we discussed last time was a condition that was drafted and submitted
to you as part of our series of five memoranda that required that prior to submittal
of the final master plan, they had to have written approval from the BLM for all of
their required accesses.
DALY:
Okay, the final master plan rather than the conceptual master plan.
MORROW:
That's right. I think that we got from the Board that this condition would be okay,
although Commissioner Luke may have some concerns about that.
LUKE:
I think that if you accept the fact that they can get that, if you believe there is
information in the record. If you don't believe you can get it, then that's a whole
different concern.
DALY:
I think there is information in the record that they will get it eventually. But we all
know how long it takes BLM sometimes to act. It needs to be in place before they
proceed. I don't think anyone would proceed with a development like this without
it in place anyway.
LUKE:
Do you have any other questions?
DALY:
No, I don't think so. I've been going over the final arguments this morning, and I
think most of them are pretty well answered.
LUKE:
Bev, do you have anything?
CLARNO:
No, not now. Nothing on the access. I would like to go ahead and discuss the
other issues.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 2 of 21 Pages
LUKE:
We have talked before, and there is nothing in the record that talks about the
condition of the southern emergency secondary access road.
MORROW:
There are some statements in the record from a couple of sources. I think the
answer is it is not definitely clear from the record that the road would meet current
County standards for emergency access. There is an MOU in the record between
the BLM and the applicant where the BLM says that the applicant can use it in its
current condition and configuration. But it is not clear what that current condition
is.
DALY:
I think that is the question we had before. I guess my question is, what are we
going to require? Can this wait also until the final master plan?
MORROW:
I think the condition that we were just discussing that would require the applicant
have written approval from the BLM as part of their submission for the final
master plan would presumably mean they would have an agreement from the BLM
that would say they can use that road, and they can improve that road. Because the
other condition that we have in the proposed conditions is that the road would have
to be improved to meet County standards for emergency access.
DALY:
Okay. I think that is reasonable.
PILLIOD:
I have a question. The information that I've seen to date and that I think the Board
has been given relative to the timing of which the BLM approvals for access, both
principal and secondary emergency access, has been that it is consistent with the
approvals previously given in other destination resorts, for example Pronghorn.
And I want to be clear as to whether that is in fact true.
MORROW:
I think I stated in the memo that you received from me, Kevin and Devin that for
Eagle Crest they had their approval from the BLM for access proposed in their
conceptual master plan at the time it was submitted. Pronghorn had their primary
and secondary access, Sheridan Road, approved by the BLM at the time they
submitted their conceptual master plan.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 3 of 21 Pages
In Pronghorn, there was a provision, because Sheridan Road was defined as a
temporary, emergency secondary resort access road, but they had that approval at
the time. Kevin might be able to explain better than I the condition that was
included in Pronghorn about their permanent emergency access at 50% build-out.
LUKE:
There was discussion, and as a matter of fact we required that the road be
improved on the outside edge of Pronghorn, which they didn't really want to do
but they did, because the thought was eventually they would go to the extension of
19th Street.
MORROW:
Right. And as you know, we had a group, the South Redmond Collaborative
Planning Group, convene, and one of the issues that group was supposed to deal
with was in light of Yew Avenue, other emergency access - the Fairgrounds, the
military, the BLM and Pronghorn - there were all kinds of interests there. The fact
remains that at the time they had their conceptual master plan submittal, they had
approval from BLM for primary and secondary access.
HARRISON:
I believe that is true. I don't have all of the context from the discussion of
Pronghorn as to what exactly was in the record. But is appears clear to me that
BLM had either granted approval on the primary access, and indicated approval on
the Sheridan Road secondary emergency access, and then entered into the MOU
with the applicant and the County to provide this permanent, secondary access at a
fixed point in time, based on build-out.
LUKE:
I think the only time that came to us was at conceptual; I remember it being there.
PILLIOD:
So, if I understand it correctly, then the secondary or emergency vehicle access has
not yet been required to be improved despite proceeding with construction.
LUKE:
The temporary one is improved, and it goes north along the canal up to Redmond.
PILLIOD:
So what is the 50% build-out?
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 4 of 21 Pages
LUKE:
They have to do an all-weather road and probably tie over to 19th Street if we
extend that to Deschutes Junction, or if it extends to Quarry. The City of Redmond
in its long-range plan is looking to have an interchange at Quarry to take the
pressure off Yew. That's been part of the whole discussion.
PILLIOD:
So that discussion will await some future event or development, and does not
depend upon - I mean, they obviously have their master plan approval.
MORROW:
And they have an improved emergency access through BLM.
LUKE:
But it's not the one BLM would like to see used. Eventually they would like to see
them go to the west if it's at all possible.
CRAGHEAD:
Was Sheridan Road required to be improved at the time of the master plan?
MORROW:
I don't know the answer to that. But is has been improved.
HARRISON:
I don't know all the details of the record with respect to Sheridan Road.
PILLIOD:
What about the conditions?
HARRISON:
The Board modified the Hearings Officer's decision.
PILLIOD:
And it was with respect to the access issue, is that right?
HARRISON:
The secondary access road. The original condition in the Hearings Officer's
decision says, "Subject to BLM approval, the applicant shall construct a temporary
emergency secondary resort access road across BLM land along an existing right-
of-way grant" - so the right-of-way grant was already there - "between the
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 5 of 21 Pages
northwest corner of the subject property and Highway 97. This road shall be
improved to a minimum width of twenty feet of all-weather surface capable of
supporting a 60,000-pound fire truck. This road shall be improved before the
commencement of combustible construction on the resort."
The applicant has requested a modification of that. Here's the condition the Board
said. "Subject to BLM approval, the applicant/owner shall improve the existing
Sheridan Road for future use as a temporary emergency secondary resort access
road. This road shall be improved to a minimum width of twenty feet of all-
weather surface capable of supporting a 60,000-pound fire truck. This road shall
be improved before the commencement of combustible construction on the resort."
What I don't know is what was in the record regarding the status of that road at the
beginning. My sense is, my recollection is, and this just my recollection, is that the
road already met these standards, that they didn't have to do anything to the road.
LUKE:
It was all weather but not paved. There aren't any BLM roads that are paved out
there.
HARRISON:
It doesn't have to be paved. Just four inches of gravel or cinder.
LUKE:
I want to point out that when Pronghorn was being developed, they were bringing
people in from about Quarry across an at-grade crossing on the railroad and going
in from the west.
HARRISON:
It was the Huntington wagon road.
LUKE:
Eventually it hit Huntington Road, yes. Huntington Road actually is east of
Deschutes Junction and goes north. Laurie, you were part of that. One of the
things they didn't want, because the permanent access road needs to go out of the
northwest corner, they didn't want the public going through their development.
They wanted to be able to lock it. That's when we required them to go along the
south property line and the west property line with the road that they brought in.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 6 of 21 Pages
CRAGHEAD:
That's what we were hoping for but we had not required that yet because BLM has
not yet approved that access, I don't think. That was the intention that we were
hoping for at 50% build out.
LUKE:
They were going to let people drive through the development as part of the road
coming from Powell Butte Highway going to the other access road, and build this
road around it.
MORROW:
Again, that's this collaborative process that will have to be worked out with all the
players.
LUKE:
I guess to answer your question, it appears that they had those agreements in place.
DALY:
The group at Pronghorn was different, too. I think Thornburgh does have access to
Cline Falls Highway.
MORROW:
For their primary access. The question is, they do need approval from the BLM,
which they have applied for, for any primary access to the north or secondary
emergency access if they start developing from the south.
HARRISON:
Just to finish the question, Eagle Crest - and I am looking at Phase III - needed
BLM access to the east and to the north. To the east to connect up with Eagle
Crest II and to the north to connect up with Highway 126. When they applied for a
conceptual master plan, they had both of both of those BLM right-of-way grants.
DALY:
They didn't have any of those at Phase I.
MORROW:
They didn't need them.
HARRISON:
They used Cline Falls Highway for Phase I and Phase II.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 7 of 21 Pages
PILLIOD:
Those were distinct destination resorts?
HARRISON:
They were expansions.
DALY:
Thornburgh won't need them until they develop sometime in the future, right?
HARRISON:
If we talking about the same criteria for an expansion as a new resort, the answer is
yes. They went through the conceptual master plan approval and addressed the
same criteria as -
PILLIOD:
So there were no approvals relative to what later became Eagle Crest III at the time
they applied for approval of the destination resort for Eagle Crest 1.
LUKE:
Let me tell you. From one who was here. Every year like clockwork Eagle Crest
came to the homebuilders' meeting for about three years, saying they were going
to start the development the next year. It took them a long, long time to get the
first phase done. I'm not sure the second phase was contemplated when they
applied for the first one. I don't know if they even owned the land at the time.
From everything I can remember, being the Homebuilders' Association and the
State Legislature, I don't remember the second phase even being talked about then.
PILLIOD:
And likewise the third phase?
LUKE:
Yes.
MORROW:
But at each phase they went through the full-blown conceptual master plan process
as if it was new, since they were not a part of the original proposal. So, Mike, did
you have a question on access?
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 8 of 21 Pages
DALY:
I didn't have a question on that other than I guess what we are talking about here is
whether we are going to set precedence if we decide to require these access points
at final master plan rather than conceptual, based on other approvals for other
resorts.
LUKE:
I think what we've done, the meeting you missed and this one, was after reading
through the documents, was to ask for clarification from staff. I think staff in this
case, Mark Pilliod, had a question for clarification purposes for his process. I don't
think we are trying to come to a decision. I think we are just trying to get some
questions answered and clarify some things.
PILLIOD:
But, Mike, the way you described it I think is correct. The Board would need to
decide whether the principal and any necessary secondary or emergency access is
feasible or has been demonstrated to be feasible for this development. And if it is,
whether to condition the acquisition of necessary rights-of-way and permits from
the BLM on final master plan, or at some future development decision timeframe,
perhaps a future phase or future subdivision. So, it is a series of steps in the
decision-making process. First, to determine the feasibility of acquiring the
necessary rights-of-way, and separately the timing of which a demonstration of
those actual, in-hand rights is to be furnished by the developer.
DALY:
On the issue of the emergency access to the south, basically it can't really be
resolved because the record is closed and we'll never know.
LUKE:
That would be true.
MORROW:
The condition that we proposed would assure, just as in Pronghorn, that first of all,
if it is not to the standards that Kevin described, the BLM will have granted them
approval to make those improvements prior to any construction of a combustible
nature. You are correct, Mike, they don't have that approval now. It can be a
condition that they would have to present in writing at the time of submittal of the
final master plan all of the necessary agreements with the BLM.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 9 of 21 Pages
LUKE:
There is a difference between this and Pronghorn. Pronghorn had them in hand, so
you could allow them to go in and do the earthwork, start the golf courses, and all
the things they had to do, but they couldn't start the clubhouse or construction on
any wood-frame structures until the road was improved. It wasn't just the right-of-
way for the road. That's a major difference.
CRAGHEAD:
The way I read the conditions in Pronghorn is that they didn't have approval to
improve the road at the time of the final master plan, they just couldn't start any
combustible construction until they got the approval from BLM to improve the
road.
LUKE:
That's not what he said. He said they couldn't start combustible construction until
they approved the road.
CRAGHEAD:
That's what I am saying.
LUKE:
You said they didn't have permission to improve the road.
CRAGHEAD:
Right, and that goes hand in hand. What I am saying is that they didn't have at
time of final master plan approval from BLM to improve Sheridan Road. They
had to have approval from BLM at the time of construction. They needed to
improve the road before they could do any combustible construction. They needed
to get BLM approval to do the improvement.
HARRISON:
They had the right-of-way grant at time of conceptual master plan. It says, "The
applicant shall construct a temporary emergency secondary resort access road
across BLM land along an existing right-of-way grant. This road shall be
improved to a minimum standard of twenty feet wide prior to commencement of
combustible construction." They had the right-of-way grant, the road was there.
So, they had demonstrated that they had access. That's exactly what we are saying
in this condition.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 10 of 21 Pages
MORROW:
They don't have a right-of-way grant from the BLM at this point for the southern
access road. They just have an MOU that says they can use it in its existing
condition. They had the right-of-way grant from Pronghorn.
CRAGHEAD:
Okay. I see what you are saying.
CLARNO:
What you are saying, Catherine, is that any condition would include the right-of-
way grant for this access and an agreement with BLM regarding the road being to
County standards.
MORROW:
Yes.
CLARNO:
That's all we are addressing right now?
MORROW:
That's all we have been talking about so far. But the condition as drafted would
apply to - (referred to an oversized map) - this road and this road.
LUKE:
Mike, she is talking about the northern road and the short BLM road that ties the
two developments together.
MORROW:
They amended their application, as I understand it, to include the southern road.
So, they have an application in now for these three roads, which are all BLM. Our
condition would cover all of these.
LUKE:
The road to the east is Division of State Lands, right?
MORROW:
Yes.
LUKE:
And do they have that?
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 11 of 21 Pages
MORROW:
Again, they have an agreement with the DSL to be able to improve and use that
road.
CLARNO:
That's a right-of-way agreement?
MORROW:
It's in the record. I would have to refer to it. It has other conditions that both
parities have to meet.
LUKE:
If the DSL decides to sell the land, they won't want to tie it up.
CLARNO:
Can you show me what you talked about as the primary access road?
MORROW:
Their property touches here. It's on their property.
HARRISON:
The way the application is structured is that this would be the primary access road
for this portion. This would be the primary access road for this portion. There are
two.
CLARNO:
I've been under the assumption that the primary access road is down there, and the
emergency is the one up there.
LUKE:
No, the emergency on the first phase is at the bottom.
HARRISON:
This would act as emergency access while this is developing, and this would
become the primary access.
CLARNO:
Okay, if that is the primary access up there, is there an emergency access?
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 12 of 21 Pages
HARRISON:
They come back out the south.
MORROW:
I think the idea is that at they would phase this, at this phase they would have their
primary and emergency access. As they went to here, they would have to
establish their primary, but by then they have essentially two emergency access
points, providing either this connection is constructed or this connection is
constructed to meet standards.
CLARNO:
When we are talking about the MOU they now have with BLM, it's that one down
there?
LUKE:
Southern access. So right now the only thing they have is Cline Falls Road.
MORROW:
And an MOU that they can use this in its current condition.
LUKE:
But you don't know what the condition is. They only thing they have is the main
entrance off Cline Falls, plus an MOU and an application.
PILLIOD:
Don't they also have assurance or representation from BLM relative to the
feasibility of obtaining the northerly access route? It makes it sound like they
haven't gotten anything from BLM in terms of response on that issue.
MORROW:
They have to go through the NEPA process. I think there may be correspondence,
three letters from the BLM regarding a number of issues. This is certainly one of
them. There might be a sentence in one of those letters regarding likelihood.
PILLIOD:
A question for the Board is still feasibility for approval of the conceptual master
plan. So if there is such evidence, the Board probably needs to consider it. With
the volumes of documents presented, it is easy to overlook.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 13 of 21 Pages
LUKE:
Sometimes it takes a long time.
PILLIOD:
If you are satisfied that feasibility is assured, that is the first question to be
considered. Beyond that, it would be conditions.
LUKE:
Mike, any other questions?
DALY:
I am thinking that a lot of these concerns we have are kind of moot in some
respects. I don't know any developers in their right minds that would spend a lot
of money to start construction until these approvals are in place.
MORROW:
With the conditions that have been proposed, you mean. The applicant did want to
proceed without these things in place, per the record.
DALY:
It's private property. They won't want to throw money down a rat hole. I'm not
worried about that. It's the final master plan that we have to worry about anyway.
LUKE:
What about the golf courses and infrastructure?
MORROW:
The conditions that are proposed in memo #5, condition #3 says the applicant shall
provide a signed formal agreement with the BLM for an access easement
connection to Highway 126 or Eagle Boulevard, or provide other documentation of
legal access to Highway 126 prior to submission of a final master plan. This is
subject to the BLM approval regarding emergency ingress and egress, improved to
minimum County standards. This is condition #4.
HARRISON:
Just to be clear, conditions #3 and #4 are timed differently. The right-of-way
grants are provided at the time of final master plan, but the roads don't actually
have to be improved until we get to actual development phases, which would be
final plat approval or issuance of a building permit, which ever comes first.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 14 of 21 Pages
It's the same notion that the roads be up to snuff before combustible construction
takes place.
PILLIOD:
The question I heard is whether the development of a golf course lies in that
condition.
LUKE:
Will it allow earthwork while you are waiting?
HARRISON:
The next step for the developer would be the final master plan. It can't go
anywhere until then. After that, they would have to apply for site plan approval on
a golf course. If they don't get final master plan approval, there's no golf course.
If they do, they can be approved to build a golf course and those emergency roads
don't have to be brought up until they get to combustible construction. This would
allow them to prepare the courses.
LUKE:
Final master plan, then the site plan before you do roads and golf courses.
CRAGHEAD:
You clarified for me that there is a difference between having the MOU and a
right-of-way grant. The way condition #3 is written, it says "or other
documentation". So would you accept an MOU for the primary access versus a
right-of-way grant?
MORROW:
If the BLM has in writing provided the applicant with something they can submit
to us with their final master plan application that says they can use the road and
improve it to the required standards, that works. I don't know what the BLM
process is.
PILLIOD:
They might call it something other than an MOU.
LUKE:
It could be called a number of things.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 15 of 21 Pages
MORROW:
I think we need to look in the record to see what the applicant has applied for.
LUKE:
It has to be irrevocable.
PILLIOD:
You could all it a property interest. They might call it something than a right-of-
way or an easement. As long as there is some commitment made by BLM that this
route is available.
MORROW:
I would also point out to you that this condition was part of the original conditions
as proposed by staff to the Hearings Officer. Staff has been consistent with this
condition.
LUKE:
There was some discussion in the Hearings Officer's decision about the ratio of
rentals. There was some discussion with staff as to whether this was new evidence
in the final argument, and what we can or can't consider. Staff kind of
recommended that new evidence should not be considered as part of our decision.
CRAGHEAD:
I did say that at the last public meeting that we had. The chart that was in the final
argument that moved numbers around on the phasing plan and other discussion
that related to that, talked about new information and how it would match up to the
phasing map. That seemed to me to be new evidence that the Board should not
consider. Because the final argument was to be argument only with no new
evidence.
LUKE:
If we do not consider that, is there enough in the record that shows it is feasible to
get to 2:1 ?
CRAGHEAD:
There is a difference of opinion. The Board could find there is not enough since it
is not consistent with the phasing plan map; or the Board could make it a condition
of approval to say that it is feasible because they have shown the 2:1 ration in a
chart. It just doesn't match the phasing plan map. A condition of approval could
require that they match, or put the numbers in.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 16 of 21 Pages
MORROW:
I would point that in the memo that you received from Legal Counsel that she
didn't cite one of the -
LUKE:
You can't refer to that because nobody else gets it.
MORROW:
Regarding the overnight accommodation ratio, it is specifically tied to the phasing
plan. It is not just 18-113-060(d)2, but also 18-113-060(e), which talks about
phasing and the requirement as part of the conditional master plan, each individual
phase shall meet the following requirements. That is the notion that cumulatively
they have to maintain or be capable of operating in a manner consistent with the
intent and purposes of Goal 8 and our Code regarding destination resorts, and that
the first phase and each subsequent phase cumulatively meet minimum
requirements of the 2:1 ratio.
LUKE:
Clearly, if you wait until the last phase is done to hit the 2:1 and they never did the
last phase, there would be a problem.
PILLIOD:
You have to determine based upon what has been presented, whether meeting the
2:1 ratio is feasible, at each phase and at final build out. If the material you have
been presented by the applicant and by those in opposition leads you to believe that
this totality of information indicates it is not feasible or is unreliable, you could
make a finding that it is not feasible. The application would then fail.
LUKE:
When they come in with a site plan, you'd look at this before site plan approval.
Let's say they were 4:1 in the first phase, would they get credit for the extra ones
in the second phase?
CRAGHEAD:
It has to be consistent, has to be 2:1 or less each time. You can only have two
permanent houses to one overnight.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 17 of 21 Pages
MORROW:
The short answer is, each phase has to have the ratio and needs to be able to work
as a whole. They would be cumulative with the previous phase. The opponents
have submitted arguments that the table doesn't match the map. You need to
determine based on the evidence in the record, and the applicant's argument,
whether it is feasible and somehow condition it to work out.
CLARNO:
So, what they submitted really didn't meet the requirement, but is it feasible that
they could meet the requirement?
CRAGHEAD:
The issue is whether - there are two different arguments. The applicant says that it
did meet the requirement because it showed at each phase that there was a 2:1
ratio. The opponents are saying that the phasing shown on the chart didn't match
with the phasing plan map, that showed different colors and different pods of
development, that they can't show where this phasing will be and therefore we
can't tell what they are going to do.
That, plus the fact that they put a notation on the chart that said of the initial 150
units of overnight lodging in Phase A, including 50 cottages with lockouts to make
them into three units, that they were going to remove those lockouts to reduce the
150 to 50 units. They didn't explain then where those other 100 get picked back
up in the development. Those two things together, according to the opponents, are
such that you can't figure out what they are doing and therefore they haven't
shown feasibility of the 2:1 ratio.
LUKE:
Plus, you made the case earlier that they did try correct all that in the final
argument, which became new evidence that we shouldn't consider. We have to
decide whether we can consider it
CRAGHEAD:
One of the arguments they made that was not new evidence was that although it
was likely that they were going to change out the lockouts, they made an argument
that it is not practically going to happen because it would take County approval to
make that change. They made that as a legal argument, not as new evidence.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 18 of 21 Pages
CLARNO:
So if I heard Mark correctly, we have to decide whether it is feasible for them to do
the 2:1 ratio in each phase, with conditions for approval.
MORROW:
Yes, that is the way you would get there if you decide to approve it. I would also
point out that in order to get to that point you would have to determine that they
have met these items as listed in memo #3 regarding overnight accommodations
and the two sections of the Code that have to do with the ratio and the mechanism
for overnight accommodations. The applicant submitted a lot of information as a
result of these hearings regarding how they would do the rentals. Also the phasing.
I think this is where the Hearings Officer had a hard time. She looked at the
phasing and the table and determined that she couldn't figure it out.
PILLIOD:
And it is appropriate for the Board not to use how it concludes one criteria and say
another criteria is therefore also undermined. You have to go through it
methodically. First, the question of whether the totality of the evidence leads you
to conclude that the 2:1 ratio is feasible; and then separately the question of
whether evidence is sufficient for you to conclude that a mechanism is or will be in
place to manage the overnight accommodations so that the 2:1 ratio is maintained.
You have to work at it incrementally, one piece at a time. And I'm sure that
Catherine intended that, but the memos naturally had to be very concise, and each
of those points needs to be kept in mind.
MORROW:
I would also point out that one of the things that has to happen as this goes along is
that when a final master plan comes in, it has to be reviewed against the conceptual
master plan. That's why this criterion 060(e) is important. It says that if a
proposed resort is to be developed in phases, each phase shall be as described in
the conceptual master plan. So the question is, how has that been described and
how will the Board, if it decides to approve it, assure that something has been
described so we can go back as we review the final master plan and say, yes, this is
what was described in the conceptual master plan.
PILLIOD:
The final master plan will be measured against if and what the Board approves,
with conditions.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 19 of 21 Pages
LUKE:
If it is appealed at LUBA and LUBA doesn't agree, are we liable for attorney fees?
CRAGHEAD:
Only costs, which are about $175. The attorney fees would only be if we had no
reasonable basis for our argument, and LUBA has never granted that.
MORROW:
So there is no significant financial risk.
LUKE:
You still have to justify it. Do they review on the record?
PILLIOD:
LUBA would be presented with the totality of the record. It will be important for
the parties to that proceeding to identify specific portions of the record they want
LUBA to review. LUBA will not undertake what this Board has been required to
do, which is to look at every piece of paper that has been submitted. LUBA would
focus only on those materials that the parties address in their arguments.
CRAGBEAD:
And if it is remanded, they could remand on a specific issues. And only those who
were parties to the LUBA appeal would be allowed to participate in the remand
hearing.
MORROW:
That would work for either approval or denial.
LUKE:
Do you have any other questions before we wrap this up?
DALY:
No, I'm fine, it's kind of the same discussions we have in the past. I have no
further questions.
MORROW:
This will be discussed at the 10:00 a.m. work session on Monday, January 30. The
order says you have to make a decision on Wednesday, February 1, and this is
scheduled for the regular 10:00 a.m. Board meeting that day.
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 20 of 21 Pages
The order says that if you decide to approve with conditions, then the applicant
will have time to work with staff to draft the decision for the ultimate approval. If
it is for denial, then we have until February 22 to prepare the findings for denial. I
have received communication from the opponents that they would assist with that.
LUKE:
I've never seen us do that before.
PILLIOD:
I think the Code is only set up in the direction of an approval where the applicant
would help prepare findings. But there is nothing that prohibits the Board from
considering assistance for staff in the event of a denial.
Being no further discussion, the meeting adjourned at 9:45 a.m.
DATED this 25th Day of January 2006 for the Deschutes County Board
of Commissioners. /7
Pdfn-!~ R. Lull, Chair
ev Clarno, Vice Chair
ATTEST:
t/&tuu-e. JOati
Daly,fommissioner
Recording Secretary
Minutes of Thornburgh Work Session Wednesday, January 25, 2006
Page 21 of 21 Pages