2018-191-Order No. 2018-037 Recorded 5/24/2018Recorded in Deschutes County CJ2018-191
Nancy Blankenship, County Clerk
REVIEWED Commissioners' ,journal 05/24/2018 8:56:38 AM
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LEGAL COUNSEL
2018-191
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Regarding a Record Objection in File
Nos. 247 -17 -000627 -CU, 247 -17 -000629 -PA, * ORDER NO. 2018-037
247 -17 -000636 -CU, 247 -17 -000637 -TP, 247 -17-
000639 -CU, 247 -17 -000640 -SP, 247 -17 -000641 -
LM, 247-18-000120-A, 247-18-000124-A, and
247-18-000177-A.
WHEREAS, consistent with ORS 197.763, Deschutes County Code ("DCC") 22.24.140(D) requires that
"[i]f at the conclusion of the initial hearing the Hearings Body leaves the record open for additional written
evidence or testimony, the record shall be left open for at least 14 additional days, allowing at least the first seven
days for submittal of new written evidence or testimony and at least seven additional days for response to the
evidence received while the record was held open. Written evidence or testimony submitted during the period the
record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or
testimony;" and
WHEREAS, the Board of County Commissioners (the "Board") conducted a second hearing on the
subject application and thereby was not bound by the above -quoted DCC 22.24.140(D); and
WHEREAS, the Board nonetheless elected to follow the format established by DCC 22.24.140(D) and
set an initial deadline at 5:00 p.m. on April 20, 2018, for any interested party to submit "new written evidence or
testimony" (the "First Open Record Period"), followed by a second deadline at 5:00 p.m. on April 27, 2018, for
the submission of "evidence or testimony that rebuts previously submitted evidence or testimony" (the "Second
Open Record Period"); and
WHEREAS, consistent with DCC 22.24.130(D), the Board likewise set a deadline at 5:00 p.m. on May
4, 2018, for submittal of final legal argument by applicants KC Development Group, LLC ("KCDG") and Tanager
Development ("Tanager"); and
WHEREAS, on May 2, 2018, appellants Thomas and Dorbina Bishop, Trustees of the Bishop Family
Trust (the "Bishops"), submitted an objection to the record arguing that "new evidence" provided by KCDG and
Tanager during the Second Open Record Period "should be rejected because the Bishops and other opponents are
not provided the opportunity to respond and all of the new evidence should have and could have been submitted
during the open record period;" and
WHEREAS, on May 2, 2018, KCDG and Tanager submitted a response to the record objection arguing
that "[a]ll documents Bishops claim should be excluded respond to new evidence filed during the first post -hearing
open record period or are not new evidence;" and
WHEREAS, on May 3, 2018, Deschutes County suspended all time limits and deadlines in the written
record period pending a resolution of the Bishops' record objection; and
WHEREAS, the Board has given due consideration to the record objection and response; now, therefore,
PAGE 1 of 2- ORDER No. 2018-037
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
FINDS AND ORDERS as follows:
The Bishops' May 2, 2018 letter argues that certain documents provided by KCDG and Tanager
during the Second Open Record Period should be excluded from the record because the Bishops do
not have an opportunity to respond. The Board finds that the deadlines for submitting written record
materials in this case follow the format established by both ORS 197.763 and DCC 22.24.140(D).
That format contemplates a single period of time for parties to submit rebuttal materials. Neither ORS
197.763 nor DCC 22.24.140(D) require that the written record be potentially left open indefinitely to
allow parties to endlessly rebut the other's rebuttal.
2. The Bishops' May 2, 2018 letter also asserts that certain documents provided by KCDG and Tanager
during the Second Open Record Period should be excluded because they could have been submitted
during the First Open Record Period. The Bishops further assert without citations that they should be
provided "the last word on evidence." Neither assertion, however, is supported by applicable case
law, ORS 197.763, or DCC 22.24.140(D). Instead, the well-established rule distinguishes between
,,new evidence" and "rebuttal evidence" and allows new evidence to be submitted during the Second
Open Record Period so long as rebutting evidence and/or issue raised during the First Open Record
Period. See Martucci v. Jackson County, Or LUBA (LUBA No 2017-121, Mar 20, 2018);
Grahn v. City of Yamhill, Or LUBA (LUBA No 2017-070, Oct 26, 2017).
3. The Board denies the Bishops' "request to reject new evidence" as stated in their May 2, 2018 letter,
because the request is predicated on incorrect legal interpretations and thereby fails to establish that
KCDG and Tanager submitted materials during the Second Open Record Period that are anything
other than "rebuttal evidence."
4. As noted, Deschutes County suspended all deadlines concerning the written record on May 3, 2018,
one day prior to original deadline for KCDG and Tanager to submit final legal arguments. Thereby,
KCDG and Tanager shall be provided one additional day from the date of this order to submit their
final legal arguments, with the new deadline being 5:00 p.m. on Thursday, May 17, 2018.
Dated this 16' day of May, 2018
ATTEST:
Recordin St ary
PAGE 2 OF 2- ORDER No. 2018-037
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
avIza-1
ANTHONY DEBONE, Chair
PHILIP G. HE ERSON, Vice Chair
TAMMY BANEY, Commis t
er