2016-92-Order No. 2016-013 Recorded 3/8/2016 j� GQry
REVIEWS NANCY DESCHUTES COUNTY CLERK C� �1�'�L
COMMISSIONERS' JOURNAL 03/08/2016 07:42:45 AM
LEGAL COUNSEL II
-B2
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Opening the Record for the Submittal of
Written Materials in the Hearing on Remand of * ORDER NO. 2016-013
TP-14-1024, SP-14-8, LM-14-17
WHEREAS, Applicant, Arrowood Development, LLC, initiated a hearing before the Hearings Officer
in application numbers TP-14-1024, SP-14-8, LM-14-17 on remand from the Land Use Board of Appeals
("LUBA"); and
WHEREAS, the Board of County Commissioners ("Board") has the discretion to reopen the record on
remand in instances in which it deems it to be appropriate under DCC 22.34.040(A), and
WHEREAS, parties to this hearing submitted a Proposed Decision on Remand, attached to this order as
Exhibit A;now,therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The written record in application numbers TP-14-1024, SP-14-8, LM-14-17 currently before
the Hearings Officer on remand from LUBA is reopened to receive the Proposed Decision on Remand, attached
to this Order as Exhibit A.
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Dated this { ' , 2016 BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ALAN UNGER, Chair
TAMMY BANEY,Vice air
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Recording Secretary ANTHONY DEBONE, Commissioner
BEFORE THE
DESCHUTES COUNTY HEARINGS OFFICER
In the matter of the land use application of )
)
) Proposed Decision on Remand
ARROWOOD DEVELOPMENT LLC, an )
Oregon Limited Liability Company. ) (File Nos. TP-14-1024; SP-14-8;
) LM-14-17)
I. PROCEDURAL HISTORY AND BACKGROUND
Applicant Arrowood Development LLC submitted its application for tentative plan approval and
site plan and landscape management review for a 24 lot zero lot line subdivision called Mile Post
1 in the above-referenced applications. A hearing was held July 1, 2014, and the Hearings
Officer issued her decision. The decision was appealed to the Oregon Land Use Board of
Appeals, which remanded the approval in an order dated June 2, 2015. After the LUBA order
was affirmed on review, the issues before the Hearings Officer on remand generally concerned
the applicability of the Widgi Creek Master Plan (as LUBA calls it in the Opinion and Order).
II. ISSUES ON REMAND
In the initial Hearings Officer decision, the Hearings Officer found that the Widgi Creek Master
Plan had been superseded by the adoption of the resort community zone. LUBA remarked that
the relevant land use legislation was "deeply ambiguous," and held that the initial Hearings
Officer Decision must be remanded for reconsideration of the applicability of the Master Plan, the
history and intent of the Resort Community Zone, and the County Comprehensive Plan policies
for Seventh Mountain/ Widgi Creek. Because of its ruling on that assignment of error by the
three homeowners associations that appealed the Decision, LUBA did not reach the other two
assignments of error regarding whether opponents' arguments constituted an improper collateral
attack on prior land use decisions involving the same property.
III. FINDINGS
The Hearings Officer notes that while the Decision in this matter was on appeal two other land
use applications were filed that raised similar issues regarding the continuing applicability of the
Seventh Mountain Master Plan, and Comprehensive Plan policies for the Seventh Mountain/
Widgi Creek area. See (BHELM LLC and Kine and Kine Properties, 247-14-000391-TP; 247-14-
000393-SP; 247-14-000394-LM, 247-14-000395-TP; 247-14-000396-SP; 247-14-000397-LM).
Those matters remain pending on appeal before the Board of County Commissioners, who is
likely to resolve at least some of the issues on remand raised here by LUBA.
In light of the fact that some of the issues on remand will likely be decided in the pending appeal
to the Board of Commissioners, the Hearings Officer finds that application can be decided and
approved on remand based on alternative grounds and based on the agreement of the parties to
the appeal. The initial Hearings Officer Decision found as an alternative basis for approval that
the property subject to Arrowood's application had been previously identified as consisting in part
of "an internal piece of land encompassing approximately 8-9 buildable acres at Inn/Widgi,"
citing the decision of Hearings Officer Ann Briggs in her 2006 decision approving the tentative
plan for the Points West subdivision (TP-06-968, SP-06-13, LM-06-34). The parties to the
proceedings on remand agree that the property subject to this application was the "8-9 buildable
acres" discussed in both the 2006 decision and in the findings included as Exhibit H to
Ordinances 2001-047/2001-048 and the comprehensive plan policies for Black Butte Ranch and
the Inn of the Seventh Mountain /Widgi Creek area, section 4.8.
The parties have also agreed that even if the Seventh Mountain/Widgi Creek Master Plan would
have allowed for a total of 103 townhome units, with 86 of those townhome units already
established in the Elkai Woods development, that counting existing lots within the Points West
subdivision there would still remain authorization for 17 more townhomes. There are 8
townhome lots that were created as part of the Points West subdivision and that are located
partially within the Widgi Creek Master Plan area. If those lots are counted toward a 103
condominium townhome limit, there would still be authorization for 9 of the applicant's proposed
10 new townhomes within the Widgi Creek Master Plan area. The opponent HOAs have agreed
that the difference between 9 new townhomes and 10 new townhomes is de minimus in the
effect on the HOAs, and that therefore in the HOAs view the current Arrowood proposal would
comply with the Seventh Mountain Master Plan, if it is indeed found to apply.
In addition, the parties to the proceedings on remand agree that the subject property for this
application is not golf course property, or designated common area or open space, within the
meaning of the Deschutes County Comprehensive Plan policies for Widgi Creek/Seventh
Mountain.
Accordingly, the Hearings Officer hereby finds that the question whether the Widgi
Creek/Seventh Mountain Master Plan applies or has any regulatory role for purposes of the
approval of Arrowood's application does not need to be decided in this proceeding.
IV. CONCLUSION AND CONDITIONS OF APPROVAL
The Hearings Officer approves the subject application on remand for the foregoing reasons, and
based upon the findings and conclusions in the initial Hearings Officer decision, except as that
decision conflicts with LUBA's Opinion and Order and this decision on remand. In particular, the
Hearings Officer's conclusions of law at pp. 5-9 of the initial Hearings Officer decision are
superseded by this decision. All findings and conclusions from the initial Hearings Officer
Decision are hereby incorporated in this decision except to the extent that they conflict with
LUBA's Opinion and Order and this Decision on remand. Since the resolution of the issues on
remand arose in part from a compromise among the parties to the proceedings on remand, this
Decision on remand is not intended to be persuasive as to any interpretation or decision or issue
preclusive with respect to other development applications not involving the subject property.
The Hearings Officer adopts the same conditions of approval from the initial Hearings Officer
decision, as follows:
Dated this day of 2016.
Deschutes County Hearings Officer