2018-281-Order No. 2018-050 Recorded 7/5/2018Recorded in Deschutes County C J2018-281
REVIEWED Nancy Blankenship, County Clerk 07/05/2018 4:20:27 PM
Commissioners' Journal
L GAL OUNSEL
2018-281
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Allowing Applicant to Modify
Application on Remand and to Consider New
Evidence Relevant to LUBA No. 2016-065 and
File No. 247 -15 -000464 -CU
* ORDER NO. 2018-050
WHEREAS, the Land Use Board of Appeals ("LUBA") issued a final opinion and order, LUBA No.
2016-065, remanding the Caldera Springs Destination Resort ("Caldera Springs") Conceptual Master Plan to
expand the existing resort ("CMP"); and
WHEREAS, LUBA issued a remand to permit the County to make additional findings and conclusions
of law regarding the overnight lodging units ("OLUs") and whether the expansion area of Caldera Springs will
be operated in a manner that is "integral" to the resort.; and
WHEREAS, Pine Forest Development, LLC, (the "Applicant"), initiated the LUBA remand in File No.
247 -15 -000464 -CU within the 180 -day period set forth in DCC 22.34.030; and
WHEREAS, the Applicant, Central Oregon LandWatch and the County have elected to mediate a
settlement of the issues presented by the LUBA remand; and
WHEREAS, Section 22.34.040(A) of the Deschutes County Code allows the Board of County
Commissioners ("Board") discretion to reopen the record in instances in which it deems to be appropriate; and
WHEREAS, Section 22.34.040(B) of the Deschutes County Code allows the Board the discretion to
permit the Applicant to modify a remanded application to the extent that such modifications would not
substantially alter the proposal and would not have significantly greater impact on surrounding neighbors; and
WHEREAS, Section 22.34.020 of the Deschutes County Code allows the Board to hear an application
on remand where the parties stipulate to the remand conditions; and
WHEREAS, Central Oregon LandWatch and the Applicant have reached agreement on the issues
presented by the LUBA remand and the relocation of a wildlife mitigation tract at Caldera Springs and wish to
stipulate to the terms and conditions of a revised CMP on remand before the Board; and
WHEREAS, the Board wishes to allow the parties to present new evidence related to question on
remand set out above; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. The Board hereby reopens the record of the Caldera Springs CMP application to allow
parties to submit and the Board to consider new evidence related to the issues of (1) whether the OLUs are
"individual units;" (2) whether the Caldera Springs annexation area will be operated in a manner "integral" to
the remainder of the resort, and (3) the relocation of the wildlife mitigation tract within the Caldera Springs
annexation area.
PAGE 1 OF 2 - ORDER No. 2018-050
Section 2. Pursuant to DCC 22.34.020, as a stipulated remand, the Board shall hear the Caldera Springs
remand application.
Dated this
of J , 2018
PAGE 2 OF 2 - ORDER No. 2018-050
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DeBONE, Chair
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PHILIP G. HE DERSON, Vice Chair
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TAMMY"BA N Y, Com ssioner
Deschutes County Board of Commissioners
1300 NW Wall St, Bend, OR 97703
(541) 388-6570 - Fax (541) 385-3202 - https://www.deschutes.org/
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners Business Meeting of July 2, 2018
DATE: June 27, 2018
FROM: Peter Gutowsky, Community Development, 541-385-1709
TITLE OF AGENDA ITEM:
Consideration of Board Signature of Order No. 2018-050, Pine Forest Development, LLC
Pine Forest Development, LLC (Applicant) respectfully asks the Board of County Commissioners to issue
Order No. 2018-050 to reopen the record to allow the Applicant to submit a revised development plan.
They are also requesting the Board hear the matter directly.
TO: Deschutes County Board of Commissioners
FROM: Peter Gutowsky, AICP, Planning Manager
DATE: June 27, 2018
SUBJECT: Pine Forest Development, LLC / LUBA Remand Proceedings / Order No. 2018-050
REQUEST
Pine Forest Development, LLC (Applicant) respectfully asks the Board of County Commissioners (Board) to
issue an order to reopen the record to allow the Applicant to submit a revised development plan. They are
also requesting the Board hear the matter directly.
The Board is not obligated to hear the LUBA remand. It has the discretion to refer this matter to a Hearings
Officer since the Caldera Springs Conceptual Master Plan (CMP) was last reviewed by a Hearings Officer.'
Deschutes County Code (DCC) 22.34.040, Proceedings on Remand, grants the Board discretion on remand to:
• Reopen the record in instances in which it deems to be appropriate;
• Enable a remanded application for a land use permit to be modified to address issues involved in the
remand to the extent that such modifications would not substantially alter the proposal and would not
have a significantly greater impact on surrounding neighbors; and,
e Allow parties to raise new, unresolved issues that relate to new evidence directed toward the issue on
remand if additional testimony is required to comply with it; and2
• Hear the matter on remand in the case of a stipulated remand.
II. LUBA REMAND / SETTLEMENT
The Applicant respectfully asks the Board to issue an order to reopen the record to allow them to submit a
revised development plan. They are also requesting the Board hear the matter directly.
The County hearings officer (Ken Helm) originally approved the CMP in April, 2016. The CMP included a
maximum of 395 single family units, a maximum of 95 overnight lodging units (OLUs), together with additional
recreation and resort -related facilities. The CMP was for an expansion of the existing Caldera Springs Resort,
1 DCC 22.34.020. The Hearings Body for a remanded or withdrawn decision shall be the Hearings Body from which the appeal to LUBA was taken,
except that in voluntary or stipulated remands, the Board may decide that it will hear the case on remand.
2 DCC 22.34.040. https://weblink.deschutes.org/public/0/doc/4133/Pagel.aspx
south of Sunriver. Central Oregon LandWatch appealed the county's decision to the Oregon Land Use Board
of Appeals (LUBA). LUBA's decision was then appealed by both the applicant and LandWatch to the Oregon
Court of Appeals. The court remanded the decision to LUBA and LUBA, in turn, remanded the decision back
to the County. LUBA identified two issues on remand: (1) whether the OLUs in the existing resort are
"separate" units, thus qualifying under the Destination Resort Statute as "overnight lodging", and (2) whether
the expansion area will be operated in a manner that is "integral" to the remainder of the resort.
The Applicant timely requested that the County proceed with the remand. Since the Applicant's request to
the County, the Applicant and LandWatch have been negotiating the terms of a revised CMP and have notified
the County that both parties wish to stipulate to the terms of a remand decision. Should the Board elect to
hear the matter directly on remand, the Board will need to determine whether the application meets the
applicable approval criteria and addresses the issues presented by LUBA on remand.
The Applicant has notified the County of the following:
CMP Changes
As part of the original CMP, the Applicant set aside approximately 125 acres as a Wildlife Mitigation
Tract. The tract was located on the eastern boundary of the resort. Based on negotiations with
LandWatch, the Applicant has enlarged the tract to approximately 221 acres and relocated it to the
southern edge of the resort. According to the Applicant, this will provide better wildlife connectivity
between the Deschutes River and forest lands east of Highway 97. While this issue was not presented
directly on remand, this modification allowed the Applicant and LanclWatch to agree to the resolution
of the remaining issues on remand.
2. The CMP included a total of 490 units, including 95 OLUs and 395 single family units. The revised CMP
will include the same total number of units, but the Applicant will provide for a maximum of 150 OLUs
and a maximum of 340 single family units. The Applicant does not propose to use "lock off" units in
the expansion area.
New Submittal and Evidence Forthcoming to Address the Remand
3. A revised CMP map identifying the relocated Wildlife Mitigation Tract and associated changes to the
layout of the remainder of the resort.
4. Additional evidence demonstrating that the existing OLUs qualify as "overnight lodging units."
5. Additional evidence demonstrating that the expansion area will be operated in a manner that is
integral to the resort; and
6. Supplemental reports (transportation, sewer, water, wildlife) demonstrating that the changes to the
CMP will not have any additional impacts beyond those contemplated by the original CMP proposal.
Attachment
Order No. 2018-050
PA
Memorandum
TO: Board of Commissioners
FROM: David Doyle, Legal Counsel
DATE: June 28, 2018
RE: Pine Forest / Caldera - LUBA Remand
RECOMMENDATION:
LEGAL COUNSEL
David Doyle, Legal Counsel
Christopher Bell, Assistant Legal Counsel
John E. Laherty, Assistant Legal Counsel
D. Adam Smith, Assistant Legal Counsel
Legal recommends that the Board exercise its discretion and direct that remand proceedings be heard by
the County Hearings Officer.
Legal is cognizant of the mediation/settlement efforts of the parties to the LUBA appeal, and does not
expect that Board action (as opposed to Hearings Officer) will provide added benefit (deference,
interpretation). In addition, the Board's hearing schedule is extremely full and as such could delay timely
resolution into the Fall.
1300 NW Wall Street Suite 205 Bend, Oregon 97703
t� (541) .388-6623 @ legalcounsel@deschutes .org (fD www,deschutes.org