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2019-470-Minutes for Meeting October 28,2019 Recorded 11/15/2019BOARD OF COMMISSIONERS 1300 NW Wall Street, Bend, Oregon (541) 388-6570 Recorded in Deschutes County CJ2019-470 Nancy Blankenship, County Clerk Commissioners' Journal 11/15/2019 2:46:28 PM 1111111111111111111111111111u FOR RECORDING STAMP ONLY BOCC MEETING MINUTES 1:00 PM MONDAY October 28,2019 ALLEN CONFERENCE ROOM Present were Commissioners Phil Henderson, Patti Adair and Anthony DeBone. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; David Doyle and Amy Heverly, County Counsel; and Laura Skundrick, Board Administrative Assistant. Several citizens and one identified representatives of the media were in attendance. CALL TO ORDER: Chair Henderson called the meeting to order at 1:00 p.m. ACTION ITEMS 1. Preparation for Public Hearing: Lower Bridge Planned Unit Development Appeal Senior Planner Will Groves provided a powerpoint presentation in preparation for the Wednesday public hearing. The Commissioners each visited the proposed development site with Mr. Groves on Friday and mentioned they took pictures during the tour. County Counsel Dave Doyle stated any pictures that will be used in the decision making process should be submitted into the record. Mr. Groves handed out copies of the powerpoint and proceeded through the presentation. BOCC MEETING OCTOBER 28, 2019 PAGE 1 OF 5 Chair Henderson asked whether opponents will testify at the hearing, and Mr. Groves stated they were invited but was unsure if they plan to attend. Commissioner DeBone added there is possibility for an open written record period after the hearing. Chair Henderson inquired about the two adjacent properties and asked which property the applicant has to show compatibility with, to which Mr. Groves replied both properties. Commissioner Adair asked if the vineyard is owned by another party, and Mr. Groves explained yes, by one of the appellants. Chair Henderson inquired about the ESEE analysis, and Mr. Groves explained that ESEE is an Economic, Social, Environmental and Energy analysis that shows the homework has been done and will mostly point back to the code. He added that there is a draft ESEE for this property but it has not reached the Commissioners at this time. Commissioner Adair inquired whether the water tank is historical, and Mr. Groves explained it is not an inventory historical resource. Chair Henderson inquired about the materials the Board should rely on since the entire written decision includes about 3,000 pages. Mr. Groves suggested focusing on the hearings officers' decision which summarizes the materials. 2. Consideration of Whether to Hear a Potential Appeal of the Hearings Officer's Decision for the Remand of Phase A-1 of the Thornburgh Destination Resort Senior Planner Jacob Ripper explained there has been a recent development in this case, an appeal filed with Deschutes County on Friday. He provided copies of the appeal and summarized the process the case has gone through to date. He explained that a procedural matter (timeliness of appeal filing) has been appealed to the Oregon Supreme Court and that the Supreme Court has yet to decide whether to accept the appeal. Mr. Ripper further explained that because the Supreme Court is not bound to time limits, it is unclear how long it may take to receive a decision. Assistant Legal Counsel Adam Smith clarified that with this new appeal, the Board of Commissioners first need to determine whether Deschutes County currently has jurisdiction, since the case has gone to LUBA, the Court of Appeals and now the Supreme Court. He added that the 120 -day decision deadline expires November 30th Commissioners Henderson and DeBone inquired about various term lengths such as extending the record or staying the clock, and Mr. Smith replied the only way to ensure no legal risk to the County is to not hear the appeal, or to hear the appeal and have a final decision by no later than November 30tH Commissioner Henderson inquired why the appellant would want the BOCC MEETING OCTOBER 28, 2019 PAGE 2 OF 5 County to hear the case, Mr. Smith speculated that the appellant would prefer that Commissioners reverse the decision. Mr. Doyle stated the initial assessment by staff was that Deschutes County has jurisdiction unless and until the Supreme Court accepts review. Commissioner DeBone requested time to review the new appeal, and Chair Henderson agreed and suggested the Board discuss again on Wednesday. Mr. Smith added if the Board decides to review the appeal, it should be completed by November 30th to prevent the risk of a procedural error. Mr. Ripper and Mr. Smith offered to return to a Board meeting or meet Commissioners separately to answer questions if needed. 3. Nonprime Resource Lands Amendment Community Development Director Nick Lelack stated the Board provided general direction last week to proceed with amendments. Staff is now seeking direction specific to involvement of the Planning Commission and further process. Chair Henderson stated the Planning Commission has weighed in strongly in favor of the six re -designations, but not on eligibility criteria for new areas. He asked whether the two issues can be decoupled, then confirm the re - designations now and continue working on the eligibility requirements. Planning Manager Peter Gutowsky explained there is some vulnerability in that, as it would not provide a way forward for property owners looking to qualify. However, the policy could be modified to allow the other property owners to continue as before and apply for rezoning, and leave the door open to preserve the status quo. Commissioner Adair mentioned a Planning Commission report that stated 47% of growth in Deschutes County has been incurred in rural county. Mr. Gutowsky replied that is untrue, the annual growth rate in the county is about 2.2% - higher than most counties but nowhere close to 47%. Mr. Lelack and Mr. Gutowsky confirmed they will decouple the two items and have the Planning Commission continue working on eligibility criteria. The Board requested a joint meeting with the Planning Commission in early 2020 to discuss the criteria. BOCC MEETING OCTOBER 28, 2019 PAGE 3 OF 5 4. 2019-20 Q2 Discretionary Grant Review Discussion of this item was postponed. OTHER ITEMS: • Chair Henderson inquired about the status of the Adult Parole and Probation work center CMGC contract. Counsel Doyle stated that the selection committee came up with their top choice and timely notified the contractors. The identified contractor and issuance of the Notice of Intent to Award is pending Board approval, set for early November. Chair Henderson restated that there were changes made to design and budget, both of which should have been presented to the Board earlier, at the initial point in time when the changes were being considered. Commissioner DeBone stated this new building option is now less costly than the options for the second floor remodel would be. County Administrator Anderson stated the cost of the original project came back higher than anticipated, so this separate idea is being explored to determine pros and cons, and it is all subject to Board review. Chair Henderson stated he would like to develop a process where these type of project questions come to BOCC for review much sooner and before the final proposal which typically has time constraints. Commissioner Adair agrees. Mr. Anderson stated that the idea was to have fully vetted options that are ready for the Board to review, and this project has no time constraints so it can take as much time as needed. Commissioner Adair added that additions should be made to the jail space as well, to eliminate the high numbers getting close to capacity. Commissioner DeBone suggested a brainstorming session, where potentially the Board can set a dollar amount, with the purpose of brainstorming and communication. • Chair Henderson stated he will attend the Homeless Coalition meeting tomorrow, and asked Commissioners if they are attending. Commissioner DeBone was not aware of the meeting, but is available and will plan to go. Deputy County Administrator Kropp will also attend. • Commissioner Adair asked for input for the forest service meeting tomorrow, and Commissioner DeBone stated he was told the forest management plan is a product of the Forest Service, but there is a statute for local coordination, so it is considered partnership with affected counties. COMMISSIONER UPDATES None offered. EXECUTIVE SESSION: None offered. BOCC MEETING OCTOBER 28, 2019 PAGE 4 OF 5 ADJOURN Being no further items to come before the Board, the meeting was adjourned at 3:03pm. DATED this Day of Commissioners. BOCC MEETING 4411 2019 for the Deschutes County Board of DERSON, CHAIR PATT ADAIR` VICE CHAIR NTHONY DEBONE, COMMISSIONER OCTOBER 28, 2019 PAGE 5 OF 5 Deschutes County Board of Commissioners 1300 NW Wall St, Bend, OR 97703 (541) 388-6570 - www.deschutes.org BOCC MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 1:00 PM, MONDAY, OCTOBER 28, 2019 Allen Conference Room - Deschutes Services Building, 2ND Floor - 1300 NW Wall Street - Bend This meeting is open to the public, and allows the Board to gather information and give direction to staff. Public comment is not normally accepted. Written minutes are taken for the record Pursuant to ORS 192.640, this agenda includes a list of the main topics that are anticipated to be considered or discussed. This notice does not limit the Board's ability to address other topics. Meetings are subject to cancellation without notice. Item start times are estimated and subject to change without notice. CALL TO ORDER ACTION ITEMS 1. 1:00 PM Preparation for Public Hearing: Lower Bridge Planned Unit Development Appeal - William Groves, Senior Planner 2. 1:45 PM Consideration of Whether to Hear a Potential Appeal of the Hearings Officer's Decision for the Remand of Phase A-1 of the Thornburgh Destination Resort. -Jacob Ripper, Senior Planner 3. 2:00 PM Nonprime Resource Lands Amendment - Nick Lelack, Community Development Director 4. 2:30 PM 2019-20 Q2 Discretionary Grant Review - Whitney Hale, Public Information Officer COMMISSIONER'S UPDATES Board of Commissioners BOCC Meeting Agenda of 2 Monday, October 28, 2019 Page 1 EXECUTIVE SESSION At any time during the meeting, an executive session could be called to address issues relating to ORS 192.660(2)(e), real property negotiations; ORS 192.660(2)(h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2)(b), personnel issues; or other executive session categories. Executive sessions are closed to the public; however, with few exceptions and under specific guidelines, are open to the media. OTHER ITEMS These can be any items not included on the agenda that the Commissioners wish to discuss as part of the meeting, pursuant to ORS 192.640. ADJOURN MI 71\ Deschutes County encourages persons with disabilities to participate in all programs and activities. This event/location is accessible to people with disabilities. If you need accommodations to make participation possible, please call (541) 617-4747. FUTURE MEETINGS: Additional meeting dates available at www.deschutes.org/meetingcalendar Meeting dates and times are subject to change. If you have questions, please call (541) 388-6572. Board of Commissioners BOCC Meeting Agenda of 2 Monday, October 28, 2019 Page 2 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 BOCC Monday Meeting of October 28, 2019 DATE: October 21, 2019 FROM: William Groves, Community Development, 541-388-6518 TITLE OF AGENDA ITEM: Preparation for Public Hearing: Lower Bridge Planned Unit Development Appeal RECOMMENDATION & ACTION REQUESTED: Review the record. Receive and request additional information from staff. BACKGROUND AND POLICY IMPLICATIONS: The Applicant requested conditional use, tentative subdivision plan, and SMIA site plan approval to establish a 19 -lot residential planned unit development ("PUD") on the Subject Property. The Board of County Commissioners (Board) will conduct a public hearing on October 30, 2019, at 1:00 PM, on appeal(s) of a Hearings Officer's decision denying a conditional use, tentative subdivision plan, and Surface Mining Impact Area ("SMIA") site plan review. FISCAL IMPLICATIONS: None ATTENDANCE: Will Groves X01 ES Q -< 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 BOCC Monday Meeting of October 28, 2019 DATE: October 15, 2019 FROM: Jacob Ripper, Community Development, 541-385-1759 TITLE OF AGENDA ITEM: Consideration of Whether to Hear a Potential Appeal of the Hearings Officer's Decision for the Remand of Phase A-1 of the Thornburgh Destination Resort. BACKGROUND AND POLICY IMPLICATIONS: On August 2, 2019, the Thornburgh Resort initiated a Land Use Board of Appeals (LUBA) remand, file no. 247-19-000611-A. Staff respectfully requests the Board of County Commissioners (Board) to determine if they will hear or will not hear an appeal of the Hearings Officer's Decision for the remand of a Tentative Plan and Site Plan Review for Phase A-1 of the Thornburgh Destination Resort. Two orders are attached. No appeal has been filed as of the date of this memo. No appeal has been filed as of the date of this memo, but an appeal is expected. Due to the compressed timeline for remand proceedings (120 days instead of 150 days), staff is bringing these orders to the Board ahead of an appeal being filed. The 120th day will be November 30, 2019. FISCAL IMPLICATIONS: None. ATTENDANCE: Jacob Ripper, AICP, Senior Planner MEMORANDUM COM it DATE: October 23, 2019 TO: Board of County Commissioners FROM: Jacob Ripper, AICP, Senior Planner RE: Thornburgh Resort Phase A-1 / LUBA Remand Proceedings and Appeal On August 2, 2019, the Thornburgh Resort' initiated a Land Use Board of Appeals (LUBA) remand, file no. 247-19-000611-A. Staff respectfully requests the Board of County Commissioners (Board) to determine if they will hear or will not hear an appeal of the Hearings Officer's Decision for the remand of a Tentative Plan and Site Plan Review for Phase A-1 of the Thornburgh Destination Resort. Two orders are attached. I. BACKGROUND The Thornburgh Destination Resort has a long and complex history. The Conceptual Master Plan (CMP) was applied for in 2005. The Final Master Plan (FMP) was originally applied for in 2007. Years of litigation resulted in the FMP being recently affirmed by LUBA in 2018. In 2018, the resort requested approval of a Tentative Plan (TP) and Site Plan Review (SP) for the initial phase of the Thornburgh Destination Resort. This phase (A-1) includes a subdivision for 192 single-family lots, overnight lodging units, private roads, emergency access roads, a well, well house, pump house, reservoir, interim subsurface sewage disposal system, and open space. II. LUBA REMAND The Hearings Officer approved the Phase A-1 proposal. Nunzie Gould appealed that decision to the Board. Due to time constraints and disagreements between parties regarding the statutory 150 -day clock, the Board declined review of the appeal. The County's decision was appealed to LUBA, and LUBA remanded (LUBA No. 2018-140) on a singular issue - the 17th condition of approval (TP Condition 17): 1 Owner: Central Land & Cattle Co., LLC 117 NW Lafayette Avenue, Bend, Oregon 97703 P.O. Box 6005, Bend, OR 97708-6005 (541) 388-6575 )cdd@deschutes.org 3www.deschutes.org/cd 17. Site design approval. Prior to issuance of building permits for the single -single family dwellings, obtain site design approval for at least 50 OLU's, which approval shall demonstrate that: a) the OLU's qualify as such and b) the Big [Falls] Ranch and COID water referenced in the Mitigation Plan and FMP decision have been secured, [or] demonstrate that the proposed alternate source is acceptable to ODFW and provides the same quantity and quality mitigation so as to not constitute a substantial modification or justify a modification to the FMP. LUBA summarized the reason for the remand: We conclude that TP Condition 17 violates the right to a public hearing on whether the no net Toss/degradation standard will be satisfied by mitigation from water sources not specified in the mitigation plan. Accordingly, the county may not rely on TP Condition 17 to conclude that, as conditioned, the tentative plan approval will comply with the mitigation plan and thus satisfy the no net loss/degradation standard. On remand, the county must consider whether, without TP Condition 17, the tentative plan for Phase A-1 satisfies the no net loss/degradation standard and whether a change in the source of mitigation water constitutes a substantial change to the FMP approval, requiring a new application, modification of the application, or other further review consistent with FMP and DCC destination resort regulations. The appellant's other assignments of error were denied. III. JURISDICTION Ms. Gould appealed LUBA's remand decision to the Court of Appeals. The Court of Appeals did not accept Ms. Gould's appeal because her attorney, Jeffrey Kleinman, apparently mailed the appeal late. Thornburgh then initiated the remand proceedings, which they only have 180 days to do so after the final appellate decision. A remand hearing was noticed and held. Mr. Kleinman argued the County did not have jurisdiction to hear the remand, as he had appealed the Court of Appeals decision to the Supreme Court. He argues that the appellate courts retain exclusive jurisdiction until such time as an appellate judgment is issued. The Hearings Officer issued a determination, which is included here as an attachment, stating he believes he does not have jurisdiction to issue a decision based on the merits of the case. IV. APPEAL No appeal has been filed as of the date of this memo. The appeal deadline is 5:00 p.m. Monday, October 28. Thornburgh is expected to appeal the Hearings Officer's decision. Ms. Gould may also appeal. Due to the compressed timeline for remand proceedings (120 days instead of 150 days), staff prepared these orders for the Board ahead of an appeal being filed. The 120th day will be November 30, 2019. 247-19-000611-A Page 2 of 6 V. BOARD OPTIONS Orders and Record: Attachments 1 and 2 are two orders, one to hear the appeal and one to decline the review. In determining whether to hear an appeal, the Board may consider: 1. The record developed before the lower Hearings Body; 2. The notice of appeal; and 3. Recommendations of staff. The entire record developed before the Hearings Officer is attached to this memo as well as in a binder that has been prepared for the Board. As mentioned above, as of the date of this memo no notice of appeal has been filed. If an appeal is made prior to the Board's Monday meeting staff will bring copies for review. Recommendations: The pending petition for review in front of the Supreme Court poses logistical challenges for the remand proceedings. While the County is bound to issue a decision within 120 days, the County may not have jurisdiction to do so if the Supreme Court decides to hear the appeal. If the Supreme Court declines review, the County may not have time to notice and hold a hearing, conduct deliberations, and issue a decision. It has been suggested that the applicant request two stays (extension periods). The first stay would be through however long it takes the Supreme Court to decide if it will accept review of Ms. Gould's appeal. In the case that the Supreme Court does not accept review, then the jurisdictional aspect should be resolved and the County can continue the remand proceedings. The second stay would be for a certain time period, perhaps four months, in order for the Board to hold a public hearing, conduct deliberations, and issue a decision. If the applicant requests these stays, then staff recommends that the Board accepts review of the appeal. If the Board accepts review, then staff further recommends that the Board does not hold a hearing until after the outcome of the petition for Supreme Court review is known. If the applicant does not request these stays, then the Board should consider declining review of the appeal in order to meet the statutory 120 -day time period. Upon mailing the Board's Order to decline review the applicant will have a final local land use decision, and the issue of jurisdiction in the Hearings Officer's decision can be appealed to LUBA. Reasons to hear: • The Board may want to take testimony and make interpretative issues relating to the remand topic prior to Land Use Board of Appeals (LUBA) review. • The Board may have enough time to issue a decision if the stays are requested and granted. 247-19-000611-A Page 3 of 6 Reasons not to hear: • If the Supreme Court decides to hear the appeal, the County may not have jurisdiction. • The Board may not have enough time to issue a decision if the stays are not requested. Attachments: 1) 2019-10-23 Board Order 2019-043 - Accept review of appeal 2) 2019-10-23 Board Order 2019-043 - Decline review of appeal 3) 2019-10-15 Hearings Officer Decision 4) 2019-10-09 A Smith Fwd email fr HOff D Olsen 5) 2019-10-09 J Neuman (Tonkon Torp) responses to open record objections 6) 2019-10-08 L Fancher responses to open record objections 7) 2019-10-01 Kleinman Record Objection 8) 2019-09-24 Open Record Period 3 Tonkon Torp testimony 9) 2019-09-24 Open Record Period 3 L Fancher Comments 10) 2019-09-24 Open Record Period 3 Central Land and Cattle Comments 11) 2019-09-24 Open Record Period 3 Central Land and Cattle Comments - Exhibit A 12) 2019-09-24 Open Record Period 3 Central Land and Cattle Comments - Exhibit B 13) 2019-09-23 P Sobel (Late Submittal) 14) 2019-09-17 Open Record Period 2 N Gould Comments 15) 2019-09-17 Open Record Period 2 N Gould Comments - Exhibit A 16) 2019-09-17 Open Record Period 2 N Gould Comments - Exhibit B 17) 2019-09-17 Open Record Period 2 N Gould Comments - Exhibit C 18) 2019-09-17 Open Record Period 2 L Fancher Comments (duplicate of K DaLashmutt submittal) 19) 2019-09-17 Open Record Period 2 K DaLashmutt Comments 20) 2019-09-17 Open Record Period 2 K DaLashmutt Comments - Exhibit 1 21) 2019-09-17 Open Record Period 2 K DaLashmutt Comments - Exhibit 2 22) 2019-09-17 Open Record Period 2 K DaLashmutt Comments - Exhibit 3 23) 2019-09-17 Open Record Period 2 J Kleinman comments 1 24) 2019-09-17 Open Record Period 2 J Kleinman comments 2 25) 2019-09-17 Open Record Period 2 COLW Comments 26) 2019-09-10 Open Record Period 1 T Bishop Comments 27) 2019-09-10 Open Record Period 1 S Dorsey Comments 28) 2019-09-10 Open Record Period 1 S Dorsey Comments - Attachments 29) 2019-09-10 Open Record Period 1 N Gould Comments 30) 2019-09-10 Open Record Period 1 N Gould Comments - Exhibit 1 31) 2019-09-10 Open Record Period 1 N Gould Comments - Exhibit 2 32) 2019-09-10 Open Record Period 1 N Gould Comments - Exhibit 3 33) 2019-09-10 Open Record Period 1 N Gould Comments - Exhibit 4 34) 2019-09-10 Open Record Period 1 N Gould Comments - Exhibit 5 35) 2019-09-10 Open Record Period 1 N Gould Comments - Exhibit 6 247-19-000611-A Page 4 of 6 36) 2019-09-10 Open Record Period 1 N Gould Comments - Exhibit 7 37) 2019-09-10 Open Record Period 1 N Gould Comments - Exhibit 8 38) 2019-09-10 Open Record Period 1 N Gould Comments - Attachment (PPT printout) 39) 2019-09-10 Open Record Period 1 L Fancher Comments 40) 2019-09-10 Open Record Period 1 L Fancher Comments - Attachments 41) 2019-09-10 Open Record Period 1J Kleinman Comments 2 42) 2019-09-10 Open Record Period 1 J Kleinman Comments 1 43) 2019-09-10 Open Record Period 1 J Kleinman Comments 1 - Exhibit A 44) 2019-09-10 Open Record Period 1 J Kleinman Comments 1 - Exhibit B 45) 2019-09-10 Open Record Period 1 J Kleinman Comments 1 - Exhibit C 46) 2019-09-10 Open Record Period 1 J Kleinman Comments 1 - Exhibit D 47) 2019-09-10 Open Record Period 1 J Kleinman Comments 1 - Exhibit E 48) 2019-09-10 Open Record Period 1 J Kleinman Comments 1 - Exhibit F 49) 2019-09-10 Open Record Period 1 J Kleinman Comments 1 - Exhibit G 50) 2019-09-10 Open Record Period 1 G Burton Comments 51) 2019-09-10 Open Record Period 1 COLW Comments 52) 2019-09-10 Open Record Period 1 COLW Comments - Exhibit 1 53) 2019-09-10 Open Record Period 1 COLW Comments - Exhibit 2 54) 2019-09-10 Open Record Period 1 COLW Comments - Exhibit 3 55) 2019-09-10 Open Record Period 1 Central Land & Cattle Comments 56) 2019-09-10 Open Record Period 1 Central Land & Cattle Comments - Exhibit 1 57) 2019-09-10 Open Record Period 1 Central Land & Cattle Comments - Exhibit 2 58) 2019-09-10 Open Record Period 1 Central Land & Cattle Comments - Exhibit 3a.JPG 59) 2019-09-10 Open Record Period 1 Central Land & Cattle Comments - Exhibit 3b.MOV 60) 2019-09-10 Open Record Period 1 Central Land & Cattle Comments - Exhibit 3c.MOV 61) 2019-09-10 Open Record Period 1 Central Land & Cattle Comments - Exhibit 3d.MOV 62) 2019-09-10 Open Record Period 1 Central Land & Cattle Comments - Exhibit 4 63) 2019-09-10 Open Record Period 1 C Boyd comments (uploaded from webmaster) 64) 2019-09-09 Open Record Period 1 M Harrington (ODFW) Comments 65) 2019-09-06 Open Record Period 1 D Arnold Comments 66) 2019-09-06 Open Record Period 1 D Arnold Comments - Attachments 67) 2019-08-27 ODFW Comments 68) 2019-08-27 Hearings Officer Hearing - Public Agenda 69) 2019-08-27 Hearings Officer Hearing - Video.mpeg4 70) 2019-08-27 Hearing Sign in Sheet 71) 2019-08-27 Hearing Exhibit List 72) 2019-08-27 Hearing Exhibit A - Appellant Submittal 73) 2019-08-27 Hearing Exhibit B - Email from R Barber RE Water 74) 2019-08-27 Hearing Exhibit C - Water Analysis 75) 2019-08-27 Hearing Exhibit D - Applicant Submittal 76) 2019-08-27 Hearing Exhibit E - Power Point & Video (PDF format) 77) 2019-08-27 Hearing Exhibit E - Power Point & Video (PPT format).pptx 78) 2019-08-27 Hearing Exhibit F - Staff Presentation 79) 2019-08-27 COLW Comments 80) 2019-08-27 COLW Comments - Exhibit A -C 247-19-000611-A Page 5 of 6 81) 2019-08-27 COLW Comments - Exhibit D 82) 2019-08-27 COLW Comments - Exhibit E 83) 2019-08-27 COLW Comments - Exhibit F 84) 2019-08-27 COLW Comments - Exhibit G 85) 2019-08-26 P Lipscomb Comments 86) 2019-08-20 Staff Report 87) 2019-08-14 D Arnold Comments RE Water Rights 88) 2019-08-09 LUBA 2018-140 Record 89) 2019-08-09 Burden of Proof 90) 2019-08-09 Burden of Proof - Exhibit A 91) 2019-08-09 Burden of Proof - Exhibit B 92) 2019-08-09 Burden of Proof - Exhibit C 93) 2019-08-09 Burden of Proof - Exhibit D 94) 2019-08-06 Notice of Public Hearing 95) 2019-08-02 Application Form 247-19-000611-A Page 6 of 6 REVIEWED LEGAL COUNSEL For Recordin. Stam. Onl BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Accepting Review of Hearings Officer's Decision in Application No. 247-19-000611-A. * * ORDER NO. 2019-043 WHEREAS, on October 15, 2019, a Deschutes County Hearings Officer issued a decision on Application No. 247-19-000611-A, a LUBA remand for Application Nos. 247 -18 -000386 -TP, 247 -18- 000454 -SP, and 247 -18 -000592 -MA. WHEREAS, Section 22.32.035 of the Deschutes County Code ("DCC") allows the Board of County Commissioners ("Board") discretion on whether to hear appeals of Hearings Officer's decisions; and WHEREAS, the Board has given due consideration as to whether to review this application on appeal; now therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. Should a timely appeal of the Hearings Officer's Decision be filed, the Board will hear on appeal Application No. 247-19-000611-A pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. Section 2. The appeal shall be heard de novo. Section 3. Staff shall set a hearing date and cause notice to be given to all persons or parties entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030. Section 4. The Board, as the appeal hearings body, waives the requirement that the appellant provide a complete transcript for the appeal hearing pursuant to DCC 22.32.024(D). I// ORDER NO. 2019-043 PAGE 1 OF 2 Section 5. To the extent its costs are Tess than the duplicate appeal fees received when multiple appeals are filed, the Planning Division may refund a portion of the appeal fees to the appellants in an equitable manner, pursuant to DCC 22.32.025(B). DATED this day of , 2019. BOARD OF COUNTY COMMISSIONERS PHILIP G. HENDERSON, Chair ATTEST: PATTI ADAIR, Vice Chair Recording Secretary ANTHONY DeBONE, Commissioner ORDER NO. 2019-043 PAGE 2 OF 2 REVIEWED LEGAL C ' SEL For Recordin• Stamp OnI BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Denying Review of Hearings Officer's Decision in Application No. 247-19-000611-A. ORDER NO. 2019-043 WHEREAS, on October 15, 2019, a Deschutes County Hearings Officer issued a decision on Application No. 247-19-000611-A, a LUBA remand for Application Nos. 247 -18 -000386 -TP, 247 -18- 000454 -SP, and 247 -18 -000592 -MA. WHEREAS, Section 22.32.035 of the Deschutes County Code ("DCC") allows the Board of County Commissioners ("Board") discretion on whether to hear appeals of Hearings Officers' decisions; and WHEREAS, the Board has given due consideration as to whether to review this application on appeal; now, therefore, THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY ORDERS as follows: Section 1. That it will not hear on appeal Application No. 247-19-000611-A pursuant to Title 22 of the Deschutes County Code and other applicable provisions of the County land use ordinances. Section 2. Pursuant to DCC 22.32.015, the County shall refund any portion of the appeal fee not yet spent processing the subject application. If the matter is further appealed to the Land Use Board of Appeals and the County is required to prepare a transcript of the hearing before the Hearings Officer, the refund shall be further reduced by an amount equal to the cost incurred by the County to prepare such a transcript. DATED this day of , 2019. BOARD OF COUNTY COMMISSIONERS PHILIP D. HENDERSON, Chair ATTEST: PATTI ADAIR, Vice Chair Recording Secretary ANTHONY DeBONE, Commissioner ORDER NO. 2019-043 PAGE 1 OF 1 FILE NUMBER: APPLICANT/OWNER: PROPOSAL: HEARING: HEARINGS OFFICER: STAFF CONTACT: HEARINGS OFFICER DECISION 247-19-000611-A. Remand from the Land Use Board of Appeals (LUBA), LUBA No. 2018-140. Central Land and Cattle Company, LLC Tentative Plan (TP) for Phase A-1 of the Thornburgh Destination Resort subdivision, Site Plan Review (SP) for associated utility facilities, and a Modification of Application (MA) for the Site Plan Review. The original file numbers are 247 -18 -000386 -TP, 454 -SP, 592 -MA. August 27, 2019, 6:00 p.m. Dan R. Olsen Jacob Ripper, AICP, Senior Planner I. STANDARDS AND APPLICABLE CRITERIA: Title 18, Deschutes County Zoning Ordinance Chapter 18.113, Destination Resorts Zone Title 22, Deschutes County Development Procedures Ordinance Chapter 22.34, Proceeding on Remand Conceptual Master Plan (CMP) for the Thornburgh Destination Resort Final Master Plan (FMP) for the Thornburgh Destination Resort II. BASIC FINDINGS: LOCATION: The proposed Thornburgh Destination Resort is large and is comprised of numerous tax lots. The lots which are subject to this application are located in the southern portion of the destination resort and are identified in Figure 1 and denoted with a (*) below. Map Number & Tax Lot Address 15-12-5000 11800 Eagle Crest Blvd. 15-12-5001 11810 Eagle Crest Blvd. 15-12-5002 11820 Eagle Crest Blvd. 15-12-7700* 67205 Cline Falls Rd.* 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 (541) 388-6575 @cdd@deschutes.org www.deschutes.org/cd 15-12-7701 67705 Cline Falls Rd. 15-12-7800* 67555 Cline Falls Rd.* 15-12-7801* 67525 Cline Falls Rd.* 15-12-7900* 67545 Cline Falls Rd.* 15-12-8000 67400 Barr Rd. LOT OF RECORD: The property subject to these applications is comprised of multiple lots of record. See file numbers LR -91-56 (tax lot 7800, one lot of record), LR -98-44 (tax lot 7900, one lot of record), and 247 -14 -000450 -LR (tax lot 7700, four lots of record). ZONING AND PLAN DESIGNATION: The subject property is zoned Exclusive Farm Use (EFU), and is within the Destination Resort (DR) Combining Zone. The property is designated as Agriculture (AG) in the Deschutes County Comprehensive Plan. LAND USE HISTORY: As described in the Hearing's Officer's findings in 247 -18 -000386 -TP, 454 -SP, 592 -MA (Section I. Basic Findings, G. Land Use History), the Thornburgh Destination Resort has a lengthy and complex history. The full history is not detailed here, but the above location is noted for reference. PROPOSAL AND PROCEDURAL HISTORY: The Deschutes County Hearings Officer previously approved a Tentative Plan (TP) for the initial phase (Phase A-1) of the Thornburgh Destination Resort. This phase includes a subdivision for 192 single-family lots, 24 additional single-family Tots to be deed -restricted for overnight lodging units, 13 lots dedicated to overnight lodging units, private roads, emergency access roads, and lots and tracts for the development of resort facilities and utility facilities, as well as open space. The applicant has submitted an associated Site Pian Review (SP) for the development of certain utility facilities including a well, well house, pump house, reservoir, and interim subsurface sewage disposal system. Additionally, the applicant submitted a Modification of Application (MA), to relocate the well, well house, pump house, and reservoir to the southern portion of the property. The original file numbers are 247 -18 -000386 -TP, 454 -SP, and 592 - MA. Annunziata Gould appealed the decision to the Board of County Commissioners. The Board declined to hear the appeal, making the County's decision final on November 15, 2018. Ms. Gould appealed the County's decision to LUBA and on June 21, 2019, LUBA remanded the hearings officer decision. HEARING: The public hearing was held on August 27, 2019. At the outset, I provided the statutorily required notices and explained the procedures for hearing the remand. I stated that I had no conflicts of interest, had received no ex parte contacts and had not conducted a site visit. I asked for but received no objections to my hearing this matter. Mr. Kleinman, representing Annunziata Gould, however, objected on jurisdictional grounds. Ms. Gould appealed the LUBA decision to the Court of Appeals. That appeal was dismissed as untimely. Ms. Gould filed a motion for reconsideration which apparently was denied. Mr. Kleinman stated that no appellate judgment has been issued, nor would one be issued until the period for filing a petition for review passes. On Hearings Officer Decision: 247-19-000611-A (LUBA remand 247 -18 -000386 -TP, 454 -SP, 592 -MA) Page 2 of 6 September 10, he submitted a copy of an order granting an extension of time to file until October 11. This issue is addressed below. At the conclusion of the hearing, the record was left open with submittals due at 5:00 p.m.: 1. September 10, 2019 Any relevant submittals 2. September 17, 2019 Rebuttal to submittals during the initial open record period. 3. September 24, 2019 Final applicant rebuttal, but no new evidence REVIEW PERIOD: The request to initiate the LUBA remand proceedings was received on August 2, 2019. Pursuant to DCC 22.34, the 120th day on which the County must take final action on this remand is November 30, 2019, assuming that the remand is effective. RECORD: On October 1, 2019, Jeffrey Kleinman, representing Ms. Gould, objected to several items submitted by Ms. Fancher, Ms. Neuman and the applicant during final rebuttal. on the grounds that they include new evidence. On October 9, I received responses from Ms. Fancher and Ms. Neuman. Given my disposition of this matter, as noted later, I have not reviewed the extensive record to determine the validity of the objections. It does appear that some of Ms. Neuman's representations regarding the content of the agreement with Big Falls Ranch are outside of the record. Without commenting on whether the evidence objected to is dispositive on the merits, the submittals do appear to address several of the issues raised. Should this be appealed to the Board of County Commissioners, the Board may wish to seriously consider authorizing a de novo proceeding to include the entire record of the hearing and these submittals pursuant to DCC 22.32.027. On October 3, I conferred with Adam Smith, Asst. County Counsel. I informed him of my resolution regarding the jurisdictional objection and asked that he confer with Ms. Fancher and Mr. Kleinman regarding the logistics of Ms. Fancher's request in her rebuttal that I delay issuing my decision for a short period to provide time for the applicant to consider its options given the unique posture of this matter. He later informed me that he was unable to reach Ms. Fancher and held off conferring with Mr. Kleinman. Mr. Smith did state that the County's preference was forme to rule on the merits or issue an advisory opinion on the merits. On October 7, by email I informed Mr. Kleinman and Ms. Fancher of this contact and that I had determined that, as discussed later, such action is not prudent or, likely, permissible and further that I considered the County's statement to be outside of the record. I asked whether there was any objection to inclusion of my October 7, email in the record. Mr. Kleinman responded that there is no objection. Accordingly, my October 7, email is placed into the record. III. FINDINGS AND CONCLUSIONS: A. JURISDICTION. Hearings Officer Decision: 247-19-000611-A (LUBA remand 247 -18 -000386 -TP, 454 -SP, 592 -MA) Page 3 of 6 On July 18, 2019 the Court of Appeals issued an Order of Dismissal of Ms. Gould's petition for review on the grounds that it was not timely filed. (Ex. A to Applicant's Burden of Proof). In his August 27, Memorandum, and at the hearing, Jeffrey Kleinman, counsel for Gould, contends that I do not have jurisdiction and that "any action by the county would be void." On September 10, the Supreme Court issued an order granting additional time to file with it an appeal of that dismissal. The parties agree that no appellate judgment has been issued. Mr. Kleinman cites ORAP 14.05 (2)(b) which states that a decision of the Court of Appeals with respect to a review of administrative agency proceedings is effective on the date the court administrator sends a copy of the appellate judgment to the agency, i.e. LUBA. Further ORAP 14.05 (3)(a) states that the administrator will not issue the judgment for a period of 35 days after the decision to allow time for filing a petition for review and a resolution on that petition. See also, ORS 19.270 (6) (appellate court jurisdiction ends when appellate judgment sent to court from which the appeal was taken.) The Order of Dismissal cites ORS 197.850 (3) which states that a petition for judicial review must be "filed within 21 days" of the date LUBA delivers or mails its final order and that filing of the petition within that time "is jurisdictional and may not be waived or extended." It cites ORS 19.260(1)(a) governing how the date of filing is to be calculated and ORAP 1.35(1)(b)(iii)(A) and (iv) which essentially mirrors the statute and requires actual delivery by mail or proof of mailing by a receipt for certified or registered mail "or class of service for delivery within three calendar days." See, State v Chapman, 298 Or App 603 (2019) (Ordinary first-class mail does not qualify.) Ms. Fancher argues that a late appeal filing results in the court acquiring no jurisdiction whatsoever and, therefore, the requirement for a judgment does not apply and the lower bodies were never divested of jurisdiction. See generally, Chapman, supra at 620; Haynes v Board of Parole & Post -Prison Supervision, 362 Or 15, 403 P3d 394 (2017); State v Harding, 373, 223 P3d 1092 (2009). Neither party cites, nor could I find, any case law directly on point with this matter. Murray Well -Drilling v Deisch, 75 Or App 1, 704 P2d 1159 (1985) may provide some guidance. Its procedural history is complex. On September 4, 1984 the trial court issued a summary judgment order. Murray appealed that on September 27. On October 12, the court dismissed for lack of jurisdiction as the trial court order was not a final order or judgment. The trial court, meanwhile, on October 3 had issued a final judgment. On November 5, 1984 Murray filed a notice of appeal from that trial court judgment. But the appellate judgment on the October 12 dismissal was not entered until November 29. On December 4, 1984 the court of appeals dismissed Murray's second appeal as untimely filed. On January 9, 1985, however, the court issued an order withdrawing that order of dismissal because it somehow determined that it had erred in calculating the filing date. But it issued a new order of dismissal on "different"jurisdictional grounds, i.e. that the trial court did not have jurisdiction to issue its final judgment before the appellate judgment was entered, so there was no judgment to appeal. The State appealed this last dismissal. The issue was whether the pendency of the original appeal deprived the trial court of jurisdiction to enter the October 3, judgment. Hearings Officer Decision: 247-19-000611-A (LUBA remand 247 -18 -000386 -TP, 454 -SP, 592 -MA) Page 4 of 6 The court explained that its original dismissal was based on a 1923 Supreme Court case and ORS 19.033(1), reasoning that "once a notice of appeal is filed in the manner prescribed" [by statutes regarding time], the court of appeals has jurisdiction and the trial court does not. (Emphasis added) The State, however, cited State v Haynes, 232 Or 330, 375 P2d 550 (1962). There, the Court stated that, although true that "when an appeal is authorized by statute" the trial court loses jurisdiction, "when an appeal is not authorized by statute, the attempt to take an appeal neither vests this court with jurisdiction nor deprives the trial court of jurisdiction." The Court of Appeals criticized this "distinction between an appeal that vests jurisdiction in the appellate court and one that does not" as creating the potential for "horrendous conflicts" in jurisdiction. It found that Haynes was inconsistent with Pohrman v Klamath Falls Comm., 272 Or 390, 397, 538 P2d 70 (1975), which held that "when a notice of appeal is timely served and filed, the appellate court has jurisdiction and can then determine whether failure to comply with the statutory form for the notice of appeal is sufficiently serious and prejudicial to warrant dismissal. (Emphasis added) The court of appeals stated that the better view is, "once a notice of appeal has been filed, the appellate court has jurisdiction, and the trial court does not, until there is a final determination on the merits or a determination that the appellate court lacks jurisdiction. It is not clear whether the various references to an appeal "timely served and filed" mean that a different rule, i.e. what Ms. Fancher suggests, applies when an appeal is determined to have not been timely filed with the court. In other words, is timely filing a predicate to the court of appeals acquiring exclusive jurisdiction? Or are the repeated references to a "timely" filing dicta? The Pohrman decision does seem to suggest a difference between a timely filed appeal that has some other defect and one that was not timely filed. The Court cited to former ORS 19.330, now ORS 19.270 which states that the appellate court has "jurisdiction of the cause when the notice of appeal has been served and filed as provided in ...ORS 19.255." ORS 19.270 also describes limited circumstances when the trial court retains jurisdiction. ORS 19.255 provides 30 days to appeal from a trial court. I have found no comparable statute for appeals from an administrative body, so the Pohrman reasoning is of questionable applicability. The applicant notes that ORS 215.435 requires it to initiate action on the remand within 180 days of the effective date of LUBA's final order or the application is deemed terminated. Further, the County must take "final action" within 120 days of the effective date of LUBA's final order. The Murray court acknowledged that a party could file a jurisdictionally defective notice of appeal and then an appeal from dismissal solely for delay. But it stated that the fact that the right to appeal may be abused does not impair the legal consequences of such right.' In short, the court of appeals was much more concerned with the consequences of overlapping jurisdiction. It also should be noted that in the course of my research, I came across cases referencing incidents in which the court issued a "dismissal and appellate judgment", suggesting that it perhaps could have but chose not to do so in this case. I do not think it is my place to carve out an exception to ORAP 14.05 for an untimely filing or conclude that the rule is inconsistent with statute. Given this 1 I stress that I am in no way implying that the appeal herein is frivolous but simply am pointing out the potential consequence noted by the court. Hearings Officer Decision: 247-19-000611-A (LUBA remand 247 -18 -000386 -TP, 454 -SP, 592 -MA) Page 5 of 6 and the court's reasoning in Murray, I appear to be compelled to grant the objection and dismiss this proceeding. I do this reluctantly, knowing that it creates a lot of uncertainty for the parties and the County as to how best to proceed. But not dismissing, issuing a decision, and then getting a determination that do not have jurisdiction after possible years of litigation seems at least, if not more, convoluted. In her response, Ms. Fancher requests that I provide the applicant time to consider its options before issuing my final decision if I conclude that I do not have jurisdiction. Given the apparent uniqueness of this situation and the uncertainties it creates, I do find that granting the request is appropriate and so informed Mr. Kleiman, Ms. Fancher and the County by email dated October 7, 2019. Accordingly, I delayed issuance to the date below, but have heard nothing during that period from the parties. Based on the foregoing findings and conclusions, and the record herein, I conclude that I do not have jurisdiction to make a determination on the merits. This decision becomes final twelve (12) days after the date of mailing, unless appealed by a party of interest. Done and dated this 14th day of October 2019 0.(n Dan R. Olsen Hearings Officer Hearings Officer Decision: 247-19-000611-A (LUBA remand 247 -18 -000386 -TP, 454 -SP, 592 -MA) Page 6 of 6 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 BOCC Monday Meeting of October 28, 2019 DATE: October 22, 2019 FROM: Nick Lelack, Community Development, 541-385-1708 TITLE OF AGENDA ITEM: Nonprime Resource Lands Amendment RECOMMENDATION & ACTION REQUESTED: On October 21, 2019 the Board of County Commissioners (Board) asked staff to continue legislative amendments relating to Nonprime Resource (NPR) Lands (File No. 247 -19- 000265 -PA). These amendments were previously tabled by the Board on August 14, 2019 as a result of a Land Use Board of Appeals decision relating to Douglas County's non - resource lands amendments. Staff is respectfully requesting the Board provide direction to the Planning Commission on the scope of its review and potential process as it pertains to NPR Lands eligibility criteria. Options include but are not limited to: Conducting Planning Commission deliberations on the eligibility criteria as proposed based on the full public record to date; or Provide the Planning Commission discretion to further expand the eligibility criteria, and re -open the oral and written records on November 14 with a new public hearing in December, and then deliberations in January. v -T ES TO: 0MMUN . f L ,. I "tLi T MEMORANDUM Board of County Commissioners FROM: Nick Lelack, AICP, Director Peter Gutowsky, AICP, Planning Manager Zechariah Heck, Associate Planner DATE: October 23, 2019 SUBJECT: Nonprime Resource Lands Direction I. BOARD DIRECTION On October 21, 2019 the Board of County Commissioners (Board) directed staff to continue legislative amendments relating to Nonprime Resource (NPR) Lands (File No. 247 -19 -000265 -PA). These amendments were previously tabled by the Board on August 14, 2019 as a result of a Land Use Board of Appeals decision relating to Douglas County's non -resource lands amendments.' Staff is respectfully requesting the Board provide direction to the Planning Commission on the scope of its review and potential process as it pertains to NPR Lands eligibility criteria (See II. B below). Options include but are not limited to: • Conducting Planning Commission deliberations on the eligibility criteria as proposed based on the full public record to date; or • Provide the Planning Commission discretion to further expand the eligibility criteria, and re- open the oral and written records on November 14 with a new public hearing in December, and then deliberations in January. II. PLANNING COMMISSION /NPR LANDS AMENDMENTS There are two components to the NPR Lands amendments. • Comprehensive Plan policies identify opportunities to re -designate six areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County;2 and • Comprehensive Plan policies establish eligibility criteria for re -designating Exclusive Farm Use (EFU) or Forest Use zoned properties to NPR Lands. 1 DLCD et al v. Douglas County. https://www.oregon.gov/LUBA/docs/Opinions/2019/08-19/18039.pdf 2 The six residentially committed areas are: Haner Park, Section 36 (Township 22, Range 10), Skyline Subdivision and 1st Addition, Squaw Creek Canyon Recreational Estates 1st Addition and Meadow Crest Acres Subdivision. If NPR Land policies/criteria are acknowledged, Deschutes County would propose a new Comprehensive Plan designation and NPR -10 zone solely to the six areas committed to residential uses. This new zone would allow residential uses outright. The County would also adopt into Deschutes County Code, Title 18 - Zoning, a NPR -20 zone. This zone would be required for all future "Non - Resource" lands quasi-judicial Comprehensive Plan / Zone Change applications. To date, the Planning Commission has held three open houses, two public hearings, and three deliberations. The Planning Commission is now scheduled to continue deliberations on November 14. They made the following the recommendations on July 9 and 11: A. Recommended by 5-1 vote (five in favor, one opposed) to support the Comprehensive Plan amendments to establish criteria that would enable the County in a subsequent phase to establish a NPR -10 zone and rezone six residentially committed areas (Attachment 1). B. Recommended by a 5-2 vote (five in favor, two opposed) to check-in with the Board to gain approval to further review and likely expand the Comprehensive Plan eligibility criteria pertaining to rezoning other farm and forest lands to a NPR -20 zone, and establishing a process to review and expand those criteria (Attachment 2).3 While they did not elaborate on the process, staff assumes they may want to re -open the public record to allow additional public comments on these criteria. C. Recommended 5-0-2 (five in favor, two abstentions) to support resubmitting the County's 2015 letter (with an updated date and members) from both the Board and Planning Commission to the Land Conservation and Development Commission (LCDC) to develop and adopt statewide non -resource lands administrative rules (Attachment 2).4 Below is a matrix that lists the draft goal and policy amendments with staff comments. As noted above the Planning Commission recommended approving policies pertaining to the six specific areas committed to residential uses (Policies 3.11.9 to 3.11.16).5 For more information, the project website is available at: https://www.deschutes.org/cd/page/nonprime-resource-land. Attachments: 1. Planning Commission Minutes - July 9, 2019 2. Planning Commission Minutes -July 11, 2019 3 Planning Commissioners during their July 11 deliberation discussed an eligibility criterion for lands to be proximate to Urban Growth Boundaries. 4 The Board approved a letter on August 26, 2019 to the Department of Land Conservation and Development (DLCD) advocating for rulemaking on rural resource lands (i.e. non -resource lands, NPR lands). The letter was entered into the record for LCDC's meeting in Tigard on September 26 and 27. LCDC chose not to prioritize rulemaking during this biennium (2019- 2021). 5 The Planning Commission recommended deleting Policy 3.11.15 because staff determined Goal 5 and an ESEE analysis is no longer required. Policy 3.11.15 - Notwithstanding Policy 3.11.3.c, lands committed to residential uses with significant Goal 5 natural resources are eligible for a Nonprime Resource Lands -10 zone subject to an ESEE analysis. Page 2 of 5 Nonprime Resource Lands Draft Goal and Policy Amendments Comments Purpose statement Purpose Statement c6 C C' L u 'ap to 'i 2 (13 r3 u (o O 'L 4J y L N V O -6 I-) O O Q J "0o C 'a as C a) y, L' in L I:* = C 0 4_+ CU (6 L L O 0 Q C O L u O C Goals and Policies Goal 1 Allow the designation of Nonprime Resource Lands in Deschutes County Nonprime Resource Lands - General Policies Policy 3.11.1 A proposal to designate Nonprime Resource Lands may be initiated by either a property owner or Deschutes County. Policy 3.11.2 The purpose of the Nonprime Resource Lands designation is to allow low intensity rural development. Policy 3.11.3 To qualify for a Nonprime Resource Lands comprehensive plan designation and Nonprime Resource Lands zoning, a property must demonstrate: a. The State's soil and definitional standards of agricultural land do not apply because: i. Fifty-one percent of a property contains Class VII or VIII soils as classified by the NRCS; ii. The site is not suitable for farm use: 1. It cannot be used for grazing or in conjunction with adjoining or nearby agricultural or grazing operations. 2. It has no availability of water for farm irrigation. 3. It cannot be combined with any other adjacent land for farming to occur 4. It is not intermingled with lands in Class I -VI soils. 5. It is unnecessary to allow adjacent properties to continue to function as agricultural land. b. The State's soil and definitional standards of forest land or forest productivity potential do not apply by showing the entire parcel possesses a potential productivity of less than 20 cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County; c. It does not contain Goal 5 natural resources; I. Call to Order COM MUNMe DEVELOPMENT M . Minutes DESCHUTES COUNTY PLANNING COMMISSION DESCHUTES SERVICES CENTER 1300 NW WALL STREET, BEND, OREGON, 97703 JULY 9, 2019 - 5:30 P.M. The meeting was called to order at 5:32 p.m. by Chair Dale Crawford. Board members present: Vice Chair Maggie Kirby, Les Hudson, Jim Beeger, Steve Swisher and Jessica Kieras. Staff present: Peter Gutowsky - Planning Manager, Zechariah Heck - Associate Planner and Ashley Williams - Administrative Assistant.' II. Public Comments There were no public comments. III. Nonprime Resource Lands Amendments / Deliberations Zechariah Heck, Associate Planner, went over the amendment and process to date. He described both proposals, the areas for proposal one, and the situations where the second proposal would apply. He said there were three Open Houses in April, and two Public Hearings, one in May and one in June. He discussed the additional materials entered into the record including public comments, correspondence between staff and other agencies, and a memo responding to testimony received at the June 13' hearing. He described options for the Planning Commission to consider: 1) forward a recommendation to the Board of County Commissioners for approval of all proposals; 2) amend and approve any proposals as they see fit; 3) acceptance of one proposal or the other; or 4) denial of all proposals. Vice Chair Kirby moved to address the options as 1 (NPR 10 properties), 2 (NPR 20 zones) and 3 (Drafting of letter to DLCD) to help the decision making process. Commissioner Swisher seconded. The motion was unanimous. Commissioner Swisher said the County submitted a letter previously to DLCD regarding state law for Non Resource Land and he felt it was ignored. 1 CDD Director Nick Lelack arrived after 7:00 p.m. 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 (541) 388-6575 @ cdd@deschutes.org www.deschutes.org/cd Commissioner Swisher moved to write a letter encouraging DLCD rulemaking regarding Non Resource Lands. Vice Chair Kirby seconded. Chair Crawford spoke in favor of the motion. He said that he feels that matters get more attention when addressed frequently. Commissioner Hudson spoke against the motion because it may hinder the Commissions ability to make a decision on the other components of the proposed amendments. Commissioner Swisher recommended adding a caveat that notes this letter does not hinder the County's ability to continue with the Nonprime Resource Lands process. Chair Crawford tabled the motion until the rest of the matters have been discussed. Chair Crawford opened discussion about the 6 designated areas (Component 1). Vice Chair Kirby requested staff provide feedback on DLCD's testimony and their opinion that the State does not provide rules regarding being able to designate these lands and recommended a full -stop on this portion of the proposal. Mr. Heck said DLCD has interpreted state law to limit Non -resource Land Amendments to properties that do not contain soils presumed to be productive for farm or forestry uses. He said there is no case law on the matter though, so if the proposed NPR Lands amendments are approved at the local level and appealed at the state level, they may set case law interpreting the state rules on the subject. In response to a question from Mr. Swisher, Mr. Gutowsky answered these lands were subdivided prior to the implementation Oregon Land Use Planning Laws. Mr. Gutowsky discussed the Big Look bill and the ineligibility of the subject lands under the criteria outlined in the Big Look bill. Further, he said the goal exceptions options allowed in state law would not work for the areas identified in Component 1 due to the farm and forest soils in these areas. He acknowledged that even though there is no case law regarding this situation, there was significant testimony, from both agencies and the public, that approving Component 1 would be unlawful. There was a discussion about setting the precedent to establish case law, and that an effort to do so would have a very high likelihood of being appealed. Commissioner Beeger expressed his opinions on both proposals. He said that taking them one at a time seems like the wisest decision. Commissioner Hudson thanked the staff for all of the amount of information provided. He said that he has a number of concerns with the Proposal 1 amendment. The caution from DLCD regarding the hard stop for soils and other qualifying criteria has had the most impact on him. He also shared concerns that there may be specific areas that have been overlooked based on testimony received. The final concern he discussed is the County's moral obligation to take on road maintenance if a zone change is approved these areas. He closed by saying he believed there are more certain ways of helping the plight of property owners in these 6 areas and so he would not vote in favor of Component 1. Commissioner Kieras started the discussion about wildlife, which was addressed at all of the Open Houses. She is afraid that the wildlife overlay zones are not in the correct places July 9, 2019 Planning Commission Minutes Page 2 of 7 based on testimony from Oregon Department of Fish and Wildlife (ODFW). Mr. Gutowsky said that currently 3 of the 6 areas are in a Wildlife Combining Zone. He went on to explain that an EESE analysis would not be required for these amendments since there is they are not adding any new uses to the areas. There was discussion about the impacts on wildlife based on the increased incentives to build that these amendments would bring. There was a discussion about how the process has developed to date. Members of the Commission acknowledged that the process went as it should have, bringing forth much discussion that would have been overlooked otherwise. Mr. Gutowsky wanted to enter into the record that staff does not have a preference as to which way the Commission decides, despite testimony that staff has a pre -determined outcome. Commissioner Hudson recommended expanding the amendment for other property owners to plead their case as to why they would qualify for a different designation. Commissioner Swisher agreed. Vice -Chair Kirby asked staff if the Planning Commission made a recommendation to expand the amendment to include additional properties as suggested whether the County Commissioners could have us expand the scope of the process to allow for additional public testimony as to why additional properties meeting unique criteria would be added. Further, she asked if that did occur, what level of work product would that be, Mr. Heck confirmed that this would be a heavy lift. Mr. Gutowsky confirmed that the Planning Commission could make this recommendation and that the Board could make that decision. He cautioned that the moment you broaden the scope, the challenges of writing findings to render those properties as potentially eligible becomes more complicated. Commissioner Hudson clarified that he was not recommending broadening the scope beyond those areas that were pre -platted. He simply wanted to make sure that the scope includes all pre -platted areas. Mr. Gutowsky clarified that if you defined the scope of previously platted and (to include Section 36) conveyed, that would be more manageable. Vice Chair Kirby asked whether staff has information on all areas that were pre -platted or conveyed, to follow the unique guidelines developed but broaden the scope. Mr. Gutowsky confirmed that they did. Commissioner Hudson expressed concerns about the potential for an appeal and a desire to ensure this has been a thorough process. Vice -Chair Kirby asked Mr. Gutowsky if the NPR -10 zone could be made available to properties beyond the six identified areas if they met the criteria, including pre -platted or conveyed properties. Mr. Gutowsky confirmed that the Planning Commission could recommend an alternative policy to allow properties that share the same. Vice -Chair Kirby moved to recommend the Board of County Commissioners approve Component 1, which re -designates six specific areas to NPR 10 zone, while allowing additional properties platted or conveyed prior to the implementation of Oregon Land Use Laws in Deschutes County to apply for re -designation under NPR 10 zone in the future. Commissioner Swisher seconded the motion, noting it was for the purpose of discussion. July 9, 2019 Planning Commission Minutes Page 3 of 7 Vice -Chair Kirby acknowledged that she is very conflicted: she wants to help the property owners of these six specific areas, but acknowledges that it possible that we may have missed something, so she would like the zone available for properties that meet the criteria. She does not believe we should open the door more broadly beyond the criteria, but this would give the Board something to consider as they initiate their public process. For her, there was not enough of an argument to wait on the re -designation of these six properties and she feels responsible to help bring upon action. Commissioner Swisher said that he is in favor of only allowing these 6 areas to be re -designated and not providing that opportunity to other properties. The Commission requested staff confirm that these were the only locations that met the criteria. Commissioner Beeger wanted to know if striking the last sentence of the motion would permanently prohibit applicants from qualifying for a zone change to an NPR 10 designation.. Mr. Gutowsky answered, "No", and that the applicant could pursue a re- designation with a PAPA (Post Acknowledgement Plan Amendment), a process similar to the one the County has presently proposed. Chair Crawford asked staff what level of certainty there was that these were the only properties that met the criteria. Mr. Gutowsky indicated he was 99% certain the six specific areas identified in Component 1 of the proposed amendments represents all of the subdivisions on resource -zoned land that were conveyed prior to state enabling legislation for land use taking place in Deschutes County. There was discussion about that level of certainty and if the Commission was ready to move forward based on the level of certainty from staff. Vice Chair Kirby moved to amend the motion to remove verbiage concerning eligibility criteria. The new motion is: Vice -Chair Kirby moved to re -designate these 6 designated areas to NPR 10 zone. Seconded by Commissioner Swisher. Chair Crawford, Vice -Chair Kirby, Commissioner Swisher, Commissioner Beeger and Commissioner Kieras were in favor. Commissioner Hudson abstained. There was a brief discussion about Commissioner Palcic's absence and the Commissions prior discussions about the desire to continue deliberations during the absence of members. Chair Crawford called for a vote on the motion on the table as follows: Vice -Chair Kirby moved to re -designate these 6 designated areas to NPR 10 zone. Commissioner Swisher seconded. Chair Crawford, Vice -Chair Kirby, Commissioner Swisher, Commissioner Beeger and Commissioner Kieras were in favor. Commissioner Hudson was opposed. Commissioner Swisher began a discussion about NPR 20 lands (Component 2) saying that he would be more inclined to favor the proposal if the criteria required lands to be near Urban Growth Boundaries (UGBs). Chair Crawford wondered what the intention of this originally was. Mr. Gutowsky said that the intention was to identify the eligibility criteria for what qualifies as Non -Resource Lands at the guidance of DLCD's letter dated January 8, July 9, 2019 Planning Commission Minutes Page 4 of 7 2015. This letter was provided in response to the County's attempt to correct mapping errors under the Big Look Bill. Chair Crawford continued that there is a tremendous amount of fear surrounding this part of the amendment. The other commissioners acknowledged the feeling of similar reactions at the open houses. Commissioner Kieras said that she could relate to the concerns of the public and said they seemed like valid concerns. There was discussion about the testimony received and how much was opposed and if any was in favor. Commissioner Swisher said there will likely be litigation surrounding Component 1 of the amendment approved earlier, making it difficult for him to want to pursue this portion of the amendment as well. Commissioner Beeger also voiced concerns with this piece, commenting that the development is moving too fast in the rural county to keep up with. Commissioner Kirby expressed concerns as well, adding that the public process brought a lot of conjecture, making it important the Commission be cautious while considering this piece. Commissioner Hudson said that he has concerns as no one wants to harm the rural character of Deschutes County. He discussed some of the potential criteria, and the needs of the growing population in the County. He said that he thinks it is irresponsible to bring it forward as it stands, but it is also irresponsible to do nothing. He is in favor of an outcome that permits further deliberation by the Planning Commission. Commissioner Swisher agreed, there are many solutions and the more that we can plan for the better. Commissioner Kieras agreed with all of the other Commissioners. She felt uncomfortable voting no, but also feels uncomfortable voting yes, adding that she was swayed by the public testimony. Her concerns lie with wildlife and existing services. She closed by saying she thinks this new zone may make more sense if it were located closer to the UGB. There was discussion about if it was the correct time to propose a motion and if not, how long to should it be postponed. There was discussion about some of the potential changes to the amendments including discussions with the City of Bend regarding Urban Reserve Area, infrastructure costs, minimum lot sizes, requirement of rezoning closer to the UGB, and criteria for community areas that are not incorporated. Commissioner Swisher moved that we continue these discussions to the July 25th meeting. Seconded by Commissioner Beeger. Commissioner Hudson believes that a less prescribed motion could be made tonight. There was discussion amongst the Commission about the level of comfort moving forward with a motion regarding their recommendation at this time. No motion regarding a recommendation was made. Commissioner Swisher moved to amend the motion to change the date to August 8th Seconded by Commissioner Beeger. July 9, 2019 Planning Commission Minutes Page 5 of 7 Commissioner Kieras is supportive of waiting because she is in favor of hearing more ideas. Vice Chair Kirby was not in favor of waiting until August Stn Director Lelack suggested the discussion continue after the meeting with the Board of County Commissioners on Thursday. He suggested that the joint meeting should be done by 7:00 pm. Chair Crawford called for a vote on the motion: Commissioner Swisher moved that the Planning Commission continue deliberations on the amendments to the August 8th meeting. Seconded by Commissioner Beeger. Commissioner Swisher and Beeger were in favor of the motion. Vice Chair Kirby and Commissioner Hudson were opposed. Commissioner Kieras abstained. Chair Crawford broke the tie, and the motion was denied. Chair Crawford called for a vote on the motion: Commissioner Swisher moved that the Planning Commission continue deliberations to the July 25th. Seconded by Commissioner Beeger. All members were opposed to the motion. Based on the votes in opposition to the above motions deliberations were set to continue on July 1 1th after the joint discussion with the Board of County Commissioners. IV. Planning Commission & Staff Comments Mr. Gutowsky said that staff has prepared the materials for the Flood Plain Amendments discussion to disburse on the 11th. He said that since the materials are voluminous this is will give the Commission an extra week of review in advance of the work session on July 25th. He provided a quick overview of the amendments. Director Lelack said that there would be a legislative update showing at the CDD Office if any members of the Commission would like to attend on the 23rd. He said that Senate Bill 88 (Rural ADU amendment) is no longer being considered. He added that the Board of County Commissioner adopted the work plan. One of their main priorities is working with the City of Bend on the Urban Reserve Area. He also said that Central Oregon LandWatch has requested the review of Goal 5 resources be added to the Work Plan. In response to a question from Commissioner Swisher he said that the staffing levels will remain the same for this year. Mr. Heck said that the Board is creating a Wildfire Hazard Zone working group. He said that this is early in the development stages but it looks to be a diverse group with representation from the Planning Commission. Next Planning Commission meeting will be on July 11, 2019. There being no further business, the meeting was adjourned at 8:02 pm. July 9, 2019 Planning Commission Minutes Page 6 of 7 Respectfully submitted, Ashley Williams Administrative Assistant All materials including (but not limited to) video, presentations, written material and submittals are subject to the County Retention Policy; All items are posted and available for public viewing on the Deschutes County Meeting Portal. For further detail on this and other meetings please follow link below. https://deschutescountyor.iqm2.com/Citizens/Default.aspx July 9, 2019 Planning Commission Minutes Page 7 of 7 I. Call to Order /IUNI`"Y P VELOPMENT Minutes DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS AND DESCHUTES COUNTY PLANNING COMMISSION JOINT MEETING DESCHUTES SERVICES CENTER 1300 NW WALL STREET, BEND, OREGON, 97703 JULY 11, 2019 - 5:30 P.M. The meeting was called to order at 5:31 p.m. by Chair Phil Henderson for the Board of County Commissioners. All Board Members were present. The meeting was called to order at 5:31 pm by Chair Dale Crawford for the Planning Commission. All Commissioners were present. 11. Public Comments There were no public comments. Nicole Mardell, Associate Planner, provided Planning Commissioners with binders of printed materials for the RLUIPA (Religious Land Use and Institutionalized Persons Act) and Flood Plain Amendments. She said that Attachment 4 to these materials is very voluminous and recommended that Planning Commissioners review these materials online. She said that there is a website dedicated to these amendments. I11. Joint Work Session with Board of County Commission: US 97 / Terrebonne Refinement Plan / TSP Amendment Peter Russell, Senior Transportation Planner, provided copies of ODOT's revised Burden of Proof. He provided some background on the Terrebonne Refinement Plan and the history leading up to the work session this evening. He introduced the consultant, Marc Butorac, from Kittleson & Associates. Commissioner Henderson had some questions about the exhibits. In response to those questions Mr. Russell said that we are intending to amend the Transportatioh System Plan, and many of these materials provide background on the process. Marc Butorac, Senior Principal Engineer from Kittleson and Associates, provided a presentation on the process to date, next steps, corridor needs, safety statistics and traffic statistics. He said the process started with concepts and was narrowed to two alternatives, a couplet and an increase to 5 lanes. Due to cost, access granting issues, alignment with 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 (541) 388-6575 @cdd@deschutes.org www.deschutes.org/cd adopted plans and other factors it was decided to move forward with the Couplet. He said that the couplet was originally introduced in January, and since then there have been many changes to the original design. He described the specifics of the design at each intersection in Terrebonne. He said that future steps would be approval by the Planning Commission, approval by the Board of County Commissioners and finally, approval by the Oregon Transpiration Commission. Commissioner DeBone had questions about what specifically was being proposed for adoption. Mr. Burorac said that this is amending the TSP to specify that a couplet be added to the Terrebonne Community. Currently the TSP identifies improvements should be made, but does not specify those improvements. There was a brief discussion about the scheduling of future hearings. Chair Crawford and Chair Henderson had questions about outreach for the Public Hearing in Terrebonne on the 25th. Mr. Russell said that the notice was sent all property owners within 250' of the couplet, representatives from Crooked River Ranch and other interested parties, as well as being published in the Bend Bulletin. Mr. Russell reminded the Commissioners that there was already funding for this project. There was discussion about the longevity of this design. Mr. Burorac said this project was designed to last until 2040 based on projected traffic increases, but he anticipates that it will last longer than that. There was discussion about projected traffic on Hwy 97 over the next 20 years, concerns with specific portions of the design, roundabout feasibility, evacuation routes and focusing on tri -county highways overall rather than in a piece by piece fashion. There was a discussion on the purposes, location, dates and times of the hearings for both the Planning Commission and the Board of County Commissioners. The parties in opposition were discussed, noting that the revisions since January 2019 have satisfied many concerns about the project. In closing it was decided to finalize that schedule after the Planning Commission has had time to deliberate. Chair Henderson adjourned the Board of County Commissioners meeting at 6:32 pm. IV. Nonprime Resource Land Amendment / Deliberation Chair Crawford reopened the deliberations for the Nonprime Resource Lands Amendment. Zechariah Heck, Associate Planner, provided a re -cap on what was discussed regarding the amendments thus far. Peter Gutowsky, Planning Manager, provided a reminder about the Goal 5 resource analysis, and explained such an analysis is not required since no new uses would be allowed in the 6 residentially -committed areas. Commissioner Swisher reminded his fellow commissioners that there is a tabled motion regarding sending a letter to DLCD to urge rulemaking for non -resource lands. July 11, 2019 Planning Commission Minutes Page 2 of 5 Commissioner Hudson moved that the County extend the principle to allow NPR rezoning of other EFU/Forest zoned land throughout the County based upon criteria to be refined, a process and a policy to be determined suitable for inclusion in the Comprehensive Plan revision. Seconded by Palcic. Commissioner Hudson broke down the motion and his reasoning for the wording. Mr. Gutowsky added that the intention for the amendment is to include the states criteria, along with additional local criteria, into the County's Comprehensive Plan. He requested that the Commission consider the ramifications of the motion, and to clarify that recommending this motion would not preclude an applicant from applying until this amendment becomes final. Mr. Heck asked for clarification of the motion as it pertains to the intended timing of implementation of the policies into the Comprehensive Plan. Commissioner Hudson said that it was not his intention to linger in adoption of the policies. There was back and forth discussion amongst staff and the Commission about the intention of the motion, intention of the amendment, timing of implementation, criteria to be established, criteria already established, and agency feedback regarding the amendment. Commissioner Swisher described the proposed criteria as he understood them. He recommended that an added criterion focus toward areas closer to the UGB (Urban Growth Boundaries) of cities. Commissioner Hudson replied to the statement saying he perceived that the NPR 10 amendment was an opened and closed window, but the NPR 20 would need more criteria established. Vice Chair Kirby stated that proposed and listed in the original packet discussed during the work session on this matter. However, she would like to look at them more thoroughly for clarity and for the potential of adding criteria. Commissioner Kieras said that her perspective is that the criteria were discussed, but she would like to see more added. One of the criteria she would like to see added is that properties should be located near a UGB. She feels this is important for a number of reasons including providing county services. She added that this seems like a logical approach and would help remedy the perception that the process has been considered ad hoc. Commissioner Beeger wanted to clear up the perception that most growth occurs within the UGB. He said that 47% of growth since 2010 has occurred in the rural county. Commissioner Palcic says that it feels as though we are building the airplane as we are flying it. He would like to start from the beginning and review the Comprehensive Plan in its entirety to address some of these issues. He felt this will cause us to be more proactive than reactive. Vice Chair Kirby wanted to clarify if he meant the County should stop processing Comprehensive Plan amendments entirely. There was discussion about waiting to update the Comprehensive Plan and how long staff should wait to do so. Director Lelack said that an update is slated for initiation in 2021. Staff described the initiation of amendments from the Board and the process that has been underway for many years regarding these lands. Mr. Gutowsky said that staff was July 11, 2019 Planning Commission Minutes Page 3 of 5 hoping to kill two birds with one stone by correcting the designations of the 6 residentially committed areas, and direction from the Board to address lands that are not suitable for farming or foresting but are zoned as such. There was discussion about the intent of the motion, moving forward, and clarifying Board Direction. Commissioner Hudson re -read his motion: Commissioner Hudson moved that the County extend the principle to allow NPR rezoning of other EFU/Forest zoned land throughout the County based upon criteria to be refined, a process and a policy to be determined suitable for inclusion in the Comprehensive Plan revision. Seconded by Palcic. Commissioners Palcic, Beeger, Swisher and Hudson were in favor. Chair Crawford, Vice Chair Kirby and Commissioner Kieras were opposed. Motion passed. Commissioner Swisher commented that he is ready to start the process, but would feel more comfortable checking with the Board of County Commissioners beforehand. Commissioner Swisher moved to set a timeline for the process and continued work on this topic should the County Commission affirm that they would like to the Planning Commission to continue. Commissioner Kieras seconded. Vice Chair Kirby commented that she felt we are kicking the can down the road when we already had direction from the BOCC, and that this could result in postponing the recommendation for another 4-6 weeks. Chair Crawford expressed concerns about continuing the discussion any further this evening. There was discussion about whether or not discussion should continue tonight. It was decided to address other matters first before further discussion on this topic. The motion vote was as follows: Commissioner Palcic, Commissioner Beeger, Commissioner Swisher, Commissioner Hudson, and Commissioner Kieras were in favor. Vice Chair Kirby abstained. Chair Crawford was opposed. The motion passed. Chair Crawford called for a vote on the tabled motion from July 9`": Commissioner Swisher moved co -write a letter with the Board of County Commissioners encouraging DLCD rulemaking regarding Non Resource Lands. Vice Chair Kirby seconded. Commissioner Swisher wondered if these topics would be brought up concurrently to the board. Staff said they would. Commissioner Beeger asked if other counties had done this. Staff said that there are other counties that have completed this process. Commissioner Palcic, Commissioner Beeger, Commissioner Swisher, Commissioner Hudson, and Commissioner Kieras were in favor. Chair Crawford and Vice Chair Kirby abstained. The motion,passed. It was requested that staff provide a list of criteria for further deliberations on the amendment. Some Commissioners requested this list in a table format. July 11, 2019 Planning Commission Minutes Page 4 of 5 There was clarification for the formal removal of Policy 3.11.15 from the amendment. This policy relates to Goal 5 inventories and resources and has been struck from the amendment. There was discussion about the next steps, clarification of the motion, and the intention of the Commission. The Commission has made a decision to approve proposal 1 and ask for approval to research and develop additional criteria for proposal 2. Commissioners explained that there was no intention to halt comprehensive plan updates until a complete revision can be completed. There was discussion about the complexity of this issue, the further discussion of criteria, and discussion on the letter sent to DLCD. V. Planning Commission & Staff Comments Director Lelack provided scheduling options for the next few meetings given the substantial amount of topics. It was decided to continue NPR discussions on August 8th, unless more time is needed in which case the Commission could consider a meeting on the 15th. Mr. Gutowsky said that he felt staff let the Commission down for this topic and is looking forward to a debriefing session to address areas of improvement. Commissioner Hudson said that it has been an evolving project with a response that was not cut and dried. He thinks that the staff did well, but believes there should always be a debriefing session. Commissioner Palcic said he is excited that the Commission took action and did not wait for complete attendance. Commissioner Beeger complemented his fellow Commissioners on their flexibility. Commissioner Kieras said she felt this meeting was a very positive experience. Even though she disagreed with some points she never felt uncomfortable. Chair Crawford discussed some of the history surrounding the Terrebonne couplet and the group of citizens there that began the process in 2017. Next Planning Commission meeting will be on July 25, 2019. There being no further business, the meeting was adjourned at 8:19 pm. Respectfully submitted, Ashley Williams Administrative Assistant All materials including (but not limited to) video, presentations, written material and submittals are subject to the County Retention Policy; All items are posted and available for public viewing on the Deschutes County Meeting Portal. For further detail on this and other meetings please follow link below. https://deschutescountyor.iqm2.com/Citizens/Default.aspx July 11, 2019 Planning Commission Minutes Page 5 of 5 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 BOCC Monday Meeting of October 28, 2019 DATE: October 22, 2019 FROM: Nick Lelack, Community Development, 541-385-1708 TITLE OF AGENDA ITEM: Nonprime Resource Lands Amendment RECOMMENDATION & ACTION REQUESTED: On October 21, 2019 the Board of County Commissioners (Board) asked staff to continue legislative amendments relating to Nonprime Resource (NPR) Lands (File No. 247 -19- 000265 -PA). These amendments were previously tabled by the Board on August 14, 2019 as a result of a Land Use Board of Appeals decision relating to Douglas County's non - resource lands amendments. Staff is respectfully requesting the Board provide direction to the Planning Commission on the scope of its review and potential process as it pertains to NPR Lands eligibility criteria. Options include but are not limited to: Conducting Planning Commission deliberations on the eligibility criteria as proposed based on the full public record to date; or Provide the Planning Commission discretion to further expand the eligibility criteria, and re -open the oral and written records on November 14 with a new public hearing in December, and then deliberations in January. CO "Mt NHY )EVLLOPMEN,.,. TO: MEMORANDUM Board of County Commissioners FROM: Nick Lelack, AICP, Director Peter Gutowsky, AICP, Planning Manager Zechariah Heck, Associate Planner DATE: October 23, 2019 SUBJECT: Nonprime Resource Lands Direction I. BOARD DIRECTION On October 21, 2019 the Board of County Commissioners (Board) directed staff to continue legislative amendments relating to Nonprime Resource (NPR) Lands (File No. 247 -19 -000265 -PA). These amendments were previously tabled by the Board on August 14, 2019 as a result of a Land Use Board of Appeals decision relating to Douglas County's non -resource lands amendments.' Staff is respectfully requesting the Board provide direction to the Planning Commission on the scope of its review and potential process as it pertains to NPR Lands eligibility criteria (See II. B below). Options include but are not limited to: • Conducting Planning Commission deliberations on the eligibility criteria as proposed based on the full public record to date; or • Provide the Planning Commission discretion to further expand the eligibility criteria, and re- open the oral and written records on November 14 with a new public hearing in December, and then deliberations in January. II. PLANNING COMMISSION /NPR LANDS AMENDMENTS There are two components to the NPR Lands amendments. • Comprehensive Plan policies identify opportunities to re -designate six areas committed to residential uses that were platted or conveyed prior to State enabling planning legislation taking effect in Deschutes County;2 and • Comprehensive Plan policies establish eligibility criteria for re -designating Exclusive Farm Use (EFU) or Forest Use zoned properties to NPR Lands. 1 DLCD et al v. Douglas County. https://www.oregon.gov/LUBA/docs/Opinions/2019/08-19/18039.pdf 2 The six residentially committed areas are: Haner Park, Section 36 (Township 22, Range 10), Skyline Subdivision and 1st Addition, Squaw Creek Canyon Recreational Estates 1st Addition and Meadow Crest Acres Subdivision. If NPR Land policies/criteria are acknowledged, Deschutes County would propose a new Comprehensive Plan designation and NPR -10 zone solely to the six areas committed to residential uses. This new zone would allow residential uses outright. The County would also adopt into Deschutes County Code, Title 18 - Zoning, a NPR -20 zone. This zone would be required for all future "Non - Resource" lands quasi-judicial Comprehensive Plan / Zone Change applications. To date, the Planning Commission has held three open houses, two public hearings, and three deliberations. The Planning Commission is now scheduled to continue deliberations on November 14. They made the following the recommendations on July 9 and 11: A. Recommended by 5-1 vote (five in favor, one opposed) to support the Comprehensive Plan amendments to establish criteria that would enable the County in a subsequent phase to establish a NPR -10 zone and rezone six residentially committed areas (Attachment 1). B. Recommended by a 5-2 vote (five in favor, two opposed) to check-in with the Board to gain approval to further review and likely expand the Comprehensive Plan eligibility criteria pertaining to rezoning other farm and forest lands to a NPR -20 zone, and establishing a process to review and expand those criteria (Attachment 2).3 While they did not elaborate on the process, staff assumes they may want to re -open the public record to allow additional public comments on these criteria. C. Recommended 5-0-2 (five in favor, two abstentions) to support resubmitting the County's 2015 letter (with an updated date and members) from both the Board and Planning Commission to the Land Conservation and Development Commission (LCDC) to develop and adopt statewide non -resource lands administrative rules (Attachment 2).4 Below is a matrix that lists the draft goal and policy amendments with staff comments. As noted above the Planning Commission recommended approving policies pertaining to the six specific areas committed to residential uses (Policies 3.11.9 to 3.11.16).5 For more information, the project website is available at: https://www.deschutes.org/cd/page/nonprime-resource-land. Attachments: 1. Planning Commission Minutes - July 9, 2019 2. Planning Commission Minutes - July 11, 2019 3 Planning Commissioners during their July 11 deliberation discussed an eligibility criterion for lands to be proximate to Urban Growth Boundaries. The Board approved a letter on August 26, 2019 to the Department of Land Conservation and Development (DLCD) advocating for rulemaking on rural resource lands (i.e. non -resource lands, NPR lands). The letter was entered into the record for LCDC's meeting in Tigard on September 26 and 27. LCDC chose not to prioritize rulemaking during this biennium (2019- 2021). 5 The Planning Commission recommended deleting Policy 3.11.15 because staff determined Goal 5 and an ESEE analysis is no longer required. Policy 3.11.15 - Notwithstanding Policy 3.11.3.c, lands committed to residential uses with significant Goal 5 natural resources are eligible for a Nonprime Resource Lands -10 zone subject to an ESEE analysis. Page 2 of 5 Nonprime Resource Lands Draft Goal and Policy Amendments Comments Purpose statement Purpose Statement t6C. v 11 _ ( ul 'v v u to O 'i — a) a) 'i N u O r° Q u O O Q -0LA C N C }' a) L.) tn i bO C 0th N i O QO L C O L uO C 4 Goals and Policies Goal 1 Allow the designation of Nonprime Resource Lands in Deschutes County Nonprime Resource Lands - General Policies Policy 3.11.1 A proposal to designate Nonprime Resource Lands may be initiated by either a property owner or Deschutes County. Policy 3.11.2 The purpose of the Nonprime Resource Lands designation is to allow low intensity rural development. Policy 3.11.3 To qualify for a Nonprime Resource Lands comprehensive plan designation and Nonprime Resource Lands zoning, a property must demonstrate: a. The State's soil and definitional standards of agricultural land do not apply because: i. Fifty-one percent of a property contains Class VII or VIII soils as classified by the NRCS; ii. The site is not suitable for farm use: 1. It cannot be used for grazing or in conjunction with adjoining or nearby agricultural or grazing operations. 2. It has no availability of water for farm irrigation. 3. It cannot be combined with any other adjacent land for farming to occur 4. It is not intermingled with lands in Class I -VI soils. 5. It is unnecessary to allow adjacent properties to continue to function as agricultural land. b. The State's soil and definitional standards of forest land or forest productivity potential do not apply by showing the entire parcel possesses a potential productivity of less than 20 cubic feet per acre per year, at culmination of mean annual increment, for one or more tree species native to Deschutes County; c. It does not contain Goal 5 natural resources; in 40 0 V. CD b0 no a in 40 0 in CU a0 no a Minutes DESCHUTES COUNTY PLANNING COMMISSION DESCHUTES SERVICES CENTER 1300 NW WALL STREET, BEND, OREGON, 97703 J u LY 9, 2019 - 5:30 P.M. I. Call to Order ELOPr The meeting was called to order at 5:32 p.m. by Chair Dale Crawford. Board members present: Vice Chair Maggie Kirby, Les Hudson, Jim Beeger, Steve Swisher and Jessica Kieras. Staff present: Peter Gutowsky - Planning Manager, Zechariah Heck - Associate Planner and Ashley Williams - Administrative Assistant.' II. Public Comments There were no public comments. III. Nonprime Resource Lands Amendments / Deliberations Zechariah Heck, Associate Planner, went over the amendment and process to date. He described both proposals, the areas for proposal one, and the situations where the second proposal would apply. He said there were three Open Houses in April, and two Public Hearings, one in May and one in June. He discussed the additional materials entered into the record including public comments, correspondence between staff and other agencies, and a memo responding to testimony received at the June 13th hearing. He described options for the Planning Commission to consider: 1) forward a recommendation to the Board of County Commissioners for approval of all proposals; 2) amend and approve any proposals as they see fit; 3) acceptance of one proposal or the other; or 4) denial of all proposals. Vice Chair Kirby moved to address the options as 1 (NPR 10 properties), 2 (NPR 20 zones) and 3 (Drafting of letter to DLCD) to help the decision making process. Commissioner Swisher seconded. The motion was unanimous. Commissioner Swisher said the County submitted a letter previously to DLCD regarding state law for Non Resource Land and he felt it was ignored. CDD Director Nick Lelack arrived after 7:00 p.m. 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 e (541) 388-6575 @cdd@deschutes.org www.deschutes.org/cd Commissioner Swisher moved to write a letter encouraging DLCD rulemaking regarding Non Resource Lands. Vice Chair Kirby seconded. Chair Crawford spoke in favor of the motion. He said that he feels that matters get more attention when addressed frequently. Commissioner Hudson spoke against the motion because it may hinder the Commissions ability to make a decision on the other components of the proposed amendments. Commissioner Swisher recommended adding a caveat that notes this letter does not hinder the County's ability to continue with the Nonprime Resource Lands process. Chair Crawford tabled the motion until the rest of the matters have been discussed. Chair Crawford opened discussion about the 6 designated areas (Component 1). Vice Chair Kirby requested staff provide feedback on DLCD's testimony and their opinion that the State does not provide rules regarding being able to designate these lands and recommended a full -stop on this portion of the proposal. Mr. Heck said DLCD has interpreted state law to limit Non -resource Land Amendments to properties that do not contain soils presumed to be productive for farm or forestry uses. He said there is no case law on the matter though, so if the proposed NPR Lands amendments are approved at the local level and appealed at the state level, they may set case law interpreting the state rules on the subject. In response to a question from Mr. Swisher, Mr. Gutowsky answered these lands were subdivided prior to the implementation Oregon Land Use Planning Laws. Mr. Gutowsky discussed the Big Look bill and the ineligibility of the subject lands under the criteria outlined in the Big Look bill. Further, he said the goal exceptions options allowed in state law would not work for the areas identified in Component 1 due to the farm and forest soils in these areas. He acknowledged that even though there is no case law regarding this situation, there was significant testimony, from both agencies and the public, that approving Component 1 would be unlawful. There was a discussion about setting the precedent to establish case law, and that an effort to do so would have a very high likelihood of being appealed. Commissioner Beeger expressed his opinions on both proposals. He said that taking them one at a time seems like the wisest decision. Commissioner Hudson thanked the staff for all of the amount of information provided. He said that he has a number of concerns with the Proposal 1 amendment. The caution from DLCD regarding the hard stop for soils and other qualifying criteria has had the most impact on him. He also shared concerns that there may be specific areas that have been overlooked based on testimony received. The final concern he discussed is the County's moral obligation to take on road maintenance if a zone change is approved these areas. He closed by saying he believed there are more certain ways of helping the plight of property owners in these 6 areas and so he would not vote in favor of Component 1. Commissioner Kieras started the discussion about wildlife, which was addressed at all of the Open Houses. She is afraid that the wildlife overlay zones are not in the correct places July 9, 2019 Planning Commission Minutes Page 2 of 7 based on testimony from Oregon Department of Fish and Wildlife (ODFW). Mr. Gutowsky said that currently 3 of the 6 areas are in a Wildlife Combining Zone. He went on to explain that an EESE analysis would not be required for these amendments since there is they are not adding any new uses to the areas. There was discussion about the impacts on wildlife based on the increased incentives to build that these amendments would bring. There was a discussion about how the process has developed to date. Members of the Commission acknowledged that the process went as it should have, bringing forth much discussion that would have been overlooked otherwise. Mr. Gutowsky wanted to enter into the record that staff does not have a preference as to which way the Commission decides, despite testimony that staff has a pre -determined outcome. Commissioner Hudson recommended expanding the amendment for other property owners to plead their case as to why they would qualify for a different designation. Commissioner Swisher agreed. Vice -Chair Kirby asked staff if the Planning Commission made a recommendation to expand the amendment to include additional properties as suggested whether the County Commissioners could have us expand the scope of the process to allow for additional public testimony as to why additional properties meeting unique criteria would be added. Further, she asked if that did occur, what level of work product would that be, Mr. Heck confirmed that this would be a heavy lift. Mr. Gutowsky confirmed that the Planning Commission could make this recommendation and that the Board could make that decision. He cautioned that the moment you broaden the scope, the challenges of writing findings to render those properties as potentially eligible becomes more complicated. Commissioner Hudson clarified that he was not recommending broadening the scope beyond those areas that were pre -platted. He simply wanted to make sure that the scope includes all pre -platted areas. Mr. Gutowsky clarified that if you defined the scope of previously platted and (to include Section 36) conveyed, that would be more manageable. Vice Chair Kirby asked whether staff has information on all areas that were pre -platted or conveyed, to follow the unique guidelines developed but broaden the scope. Mr. Gutowsky confirmed that they did. Commissioner Hudson expressed concerns about the potential for an appeal and a desire to ensure this has been a thorough process. Vice -Chair Kirby asked Mr. Gutowsky if the NPR -10 zone could be made available to properties beyond the six identified areas if they met the criteria, including pre -platted or conveyed properties. Mr. Gutowsky confirmed that the Planning Commission could recommend an alternative policy to allow properties that share the same. Vice -Chair Kirby moved to recommend the Board of County Commissioners approve Component 1, which re -designates six specific areas to NPR 10 zone, while allowing additional properties platted or conveyed prior to the implementation of Oregon Land Use Laws in Deschutes County to apply for re -designation under NPR 10 zone in the future. Commissioner Swisher seconded the motion, noting it was for the purpose of discussion. July 9, 2019 Planning Commission Minutes Page 3 of 7 Vice -Chair Kirby acknowledged that she is very conflicted: she wants to help the property owners of these six specific areas, but acknowledges that it possible that we may have missed something, so she would like the zone available for properties that meet the criteria. She does not believe we should open the door more broadly beyond the criteria, but this would give the Board something to consider as they initiate their public process. For her, there was not enough of an argument to wait on the re -designation of these six properties and she feels responsible to help bring upon action. Commissioner Swisher said that he is in favor of only allowing these 6 areas to be re -designated and not providing that opportunity to other properties. The Commission requested staff confirm that these were the only locations that met the criteria. Commissioner Beeger wanted to know if striking the last sentence of the motion would permanently prohibit applicants from qualifying for a zone change to an NPR 10 designation.. Mr. Gutowsky answered, "No", and that the applicant could pursue a re- designation with a PAPA (Post Acknowledgement Plan Amendment), a process similar to the one the County has presently proposed. Chair Crawford asked staff what level of certainty there was that these were the only properties that met the criteria. Mr. Gutowsky indicated he was 99% certain the six specific areas identified in Component 1 of the proposed amendments represents all of the subdivisions on resource -zoned land that were conveyed prior to state enabling legislation for land use taking place in Deschutes County. There was discussion about that level of certainty and if the Commission was ready to move forward based on the level of certainty from staff. Vice Chair Kirby moved to amend the motion to remove verbiage concerning eligibility criteria. The new motion is: Vice -Chair Kirby moved to re -designate these 6 designated areas to NPR 10 zone. Seconded by Commissioner Swisher. Chair Crawford, Vice -Chair Kirby, Commissioner Swisher, Commissioner Beeger and Commissioner Kieras were in favor. Commissioner Hudson abstained. There was a brief discussion about Commissioner Palcic's absence and the Commissions prior discussions about the desire to continue deliberations during the absence of members. Chair Crawford called for a vote on the motion on the table as follows: Vice -Chair Kirby moved to re -designate these 6 designated areas to NPR 10 zone. Commissioner Swisher seconded. Chair Crawford, Vice -Chair Kirby, Commissioner Swisher, Commissioner Beeger and Commissioner Kieras were in favor. Commissioner Hudson was opposed. Commissioner Swisher began a discussion about NPR 20 lands (Component 2) saying that he would be more inclined to favor the proposal if the criteria required lands to be near Urban Growth Boundaries (UGBs). Chair Crawford wondered what the intention of this originally was. Mr. Gutowsky said that the intention was to identify the eligibility criteria for what qualifies as Non -Resource Lands at the guidance of DLCD's letter dated January 8, July 9, 2019 Planning Commission Minutes Page 4 of 7 2015. This letter was provided in response to the County's attempt to correct mapping errors under the Big Look Bill. Chair Crawford continued that there is a tremendous amount of fear surrounding this part of the amendment. The other commissioners acknowledged the feeling of similar reactions at the open houses. Commissioner Kieras said that she could relate to the concerns of the public and said they seemed like valid concerns. There was discussion about the testimony received and how much was opposed and if any was in favor. Commissioner Swisher said there will likely be litigation surrounding Component 1 of the amendment approved earlier, making it difficult for him to want to pursue this portion of the amendment as well. Commissioner Beeger also voiced concerns with this piece, commenting that the development is moving too fast in the rural county to keep up with. Commissioner Kirby expressed concerns as well, adding that the public process brought a lot of conjecture, making it important the Commission be cautious while considering this piece. Commissioner Hudson said that he has concerns as no one wants to harm the rural character of Deschutes County. He discussed some of the potential criteria, and the needs of the growing population in the County. He said that he thinks it is irresponsible to bring it forward as it stands, but it is also irresponsible to do nothing. He is in favor of an outcome that permits further deliberation by the Planning Commission. Commissioner Swisher agreed, there are many solutions and the more that we can plan for the better. Commissioner Kieras agreed with all of the other Commissioners. She felt uncomfortable voting no, but also feels uncomfortable voting yes, adding that she was swayed by the public testimony. Her concerns lie with wildlife and existing services. She closed by saying she thinks this new zone may make more sense if it were located closer to the UGB. There was discussion about if it was the correct time to propose a motion and if not, how long to should it be postponed. There was discussion about some of the potential changes to the amendments including discussions with the City of Bend regarding Urban Reserve Area, infrastructure costs, minimum lot sizes, requirement of rezoning closer to the UGB, and criteria for community areas that are not incorporated. Commissioner Swisher moved that we continue these discussions to the July 25th meeting. Seconded by Commissioner Beeger. Commissioner Hudson believes that a less prescribed motion could be made tonight. There was discussion amongst the Commission about the level of comfort moving forward with a motion regarding their recommendation at this time. No motion regarding a recommendation was made. Commissioner Swisher moved to amend the motion to change the date to August 8th. Seconded by Commissioner Beeger. July 9, 2019 Planning Commission Minutes Page 5 of 7 Commissioner Kieras is supportive of waiting because she is in favor of hearing more ideas. Vice Chair Kirby was not in favor of waiting until August 8th Director Lelack suggested the discussion continue after the meeting with the Board of County Commissioners on Thursday. He suggested that the joint meeting should be done by 7:00 pm. Chair Crawford called for a vote on the motion: Commissioner Swisher moved that the Planning Commission continue deliberations on the amendments to the August 8th meeting. Seconded by Commissioner Beeger. Commissioner Swisher and Beeger were in favor of the motion. Vice Chair Kirby and Commissioner Hudson were opposed. Commissioner Kieras abstained. Chair Crawford broke the tie, and the motion was denied. Chair Crawford called for a vote on the motion: Commissioner Swisher moved that the Planning Commission continue deliberations to the July 25th. Seconded by Commissioner Beeger. All members were opposed to the motion. Based on the votes in opposition to the above motions deliberations were set to continue onJuly 11th after the joint discussion with the Board of County Commissioners. IV. Planning Commission & Staff Comments Mr. Gutowsky said that staff has prepared the materials for the Flood Plain Amendments discussion to disburse on the 11th. He said that since the materials are voluminous this is will give the Commission an extra week of review in advance of the work session on July 25th. He provided a quick overview of the amendments. Director Lelack said that there would be a legislative update showing at the CDD Office if any members of the Commission would like to attend on the 23rd. He said that Senate Bill 88 (Rural ADU amendment) is no longer being considered. He added that the Board of County Commissioner adopted the work plan. One of their main priorities is working with the City of Bend on the Urban Reserve Area. He also said that Central Oregon LandWatch has requested the review of Goal 5 resources be added to the Work Plan. In response to a question from Commissioner Swisher he said that the staffing levels will remain the same for this year. Mr. Heck said that the Board is creating a Wildfire Hazard Zone working group. He said that this is early in the development stages but it looks to be a diverse group with representation from the Planning Commission. Next Planning Commission meeting will be on July 11, 2019. There being no further business, the meeting was adjourned at 8:02 pm. July 9, 2019 Planning Commission Minutes Page 6 of 7 Respectfully submitted, Ashley Williams Administrative Assistant All materials including (but not limited to) video, presentations, written material and submittals are subject to the County Retention Policy; All items are posted and available for public viewing on the Deschutes County Meeting Portal. For further detail on this and other meetings please follow link below. https://deschutescountyor.iqm2.com/Citizens/Default.aspx July 9, 2019 Planning Commission Minutes Page 7 of 7 I. Call to Order Pifh;UNrrY Minutes DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS AND DESCHUTES COUNTY PLANNING COMMISSION JOINT MEETING DESCHUTES SERVICES CENTER 1300 NW WALL STREET, BEND, OREGON, 97703 JULY 11, 2019 - 5:30 P.M. The meeting was called to order at 5:31 p.m. by Chair Phil Henderson for the Board of County Commissioners. All Board Members were present. The meeting was called to order at 5:31 pm by Chair Dale Crawford for the Planning Commission. All Commissioners were present. II. Public Comments There were no public comments. Nicole Mardell, Associate Planner, provided Planning Commissioners with binders of printed materials for the RLUIPA (Religious Land Use and Institutionalized Persons Act) and Flood Plain Amendments. She said that Attachment 4 to these materials is very voluminous and recommended that Planning Commissioners review these materials online. She said that there is a website dedicated to these amendments. III. Joint Work Session with Board of County Commission: US 97 / Terrebonne Refinement Plan / TSP Amendment Peter Russell, Senior Transportation Planner, provided copies of ODOT's revised Burden of Proof. He provided some background on the Terrebonne Refinement Plan and the history leading up to the work session this evening. He introduced the consultant, Marc Butorac, from Kittleson & Associates. Commissioner Henderson had some questions about the exhibits. In response to those questions Mr. Russell said that we are intending to amend the Transportation System Plan, and many of these materials provide background on the process. Marc Butorac, Senior Principal Engineer from Kittleson and Associates, provided a presentation on the process to date, next steps, corridor needs, safety statistics and traffic statistics. He said the process started with concepts and was narrowed to two alternatives, a couplet and an increase to 5 lanes. Due to cost, access granting issues, alignment with 117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005 e. (541) 388-6575 @cdd@deschutes.org { www.deschutes.org/cd adopted plans and other factors it was decided to move forward with the Couplet. He said that the couplet was originally introduced in January, and since then there have been many changes to the original design. He described the specifics of the design at each intersection in Terrebonne. He said that future steps would be approval by the Planning Commission, approval by the Board of County Commissioners and finally, approval by the Oregon Transpiration Commission. Commissioner DeBone had questions about what specifically was being proposed for adoption. Mr. Burorac said that this is amending the TSP to specify that a couplet be added to the Terrebonne Community. Currently the TSP identifies improvements should be made, but does not specify those improvements. There was a brief discussion about the scheduling of future hearings. Chair Crawford and Chair Henderson had questions about outreach for the Public Hearing in Terrebonne on the 25th. Mr. Russell said that the notice was sent all property owners within 250' of the couplet, representatives from Crooked River Ranch and other interested parties, as well as being published in the Bend Bulletin. Mr. Russell reminded the Commissioners that there was already funding for this project. There was discussion about the longevity of this design. Mr. Burorac said this project was designed to last until 2040 based on projected traffic increases, but he anticipates that it will last longer than that. There was discussion about projected traffic on Hwy 97 over the next 20 years, concerns with specific portions of the design, roundabout feasibility, evacuation routes and focusing on tri -county highways overall rather than in a piece by piece fashion. There was a discussion on the purposes, location, dates and times of the hearings for both the Planning Commission and the Board of County Commissioners. The parties in opposition were discussed, noting that the revisions since January 2019 have satisfied many concerns about the project. In closing it was decided to finalize that schedule after the Planning Commission has had time to deliberate. Chair Henderson adjourned the Board of County Commissioners meeting at 6:32 pm. IV. Nonprime Resource Land Amendment / Deliberation Chair Crawford reopened the deliberations for the Nonprime Resource Lands Amendment. Zechariah Heck, Associate Planner, provided a re -cap on what was discussed regarding the amendments thus far. Peter Gutowsky, Planning Manager, provided a reminder about the Goal 5 resource analysis, and explained such an analysis is not required since no new uses would be allowed in the 6 residentially -committed areas. Commissioner Swisher reminded his fellow commissioners that there is a tabled motion regarding sending a letter to DLCD to urge rulemaking for non -resource lands. July 11, 2019 Planning Commission Minutes Page 2 of 5 Commissioner Hudson moved that the County extend the principle to allow NPR rezoning of other EFU/Forest zoned land throughout the County based upon criteria to be refined, a process and a policy to be determined suitable for inclusion in the Comprehensive Plan revision. Seconded by Palcic. Commissioner Hudson broke down the motion and his reasoning for the wording. Mr. Gutowsky added that the intention for the amendment is to include the states criteria, along with additional local criteria, into the County's Comprehensive Plan. He requested that the Commission consider the ramifications of the motion, and to clarify that recommending this motion would not preclude an applicant from applying until this amendment becomes final. Mr. Heck asked for clarification of the motion as it pertains to the intended timing of implementation of the policies into the Comprehensive Plan. Commissioner Hudson said that it was not his intention to linger in adoption of the policies. There was back and forth discussion amongst staff and the Commission about the intention of the motion, intention of the amendment, timing of implementation, criteria to be established, criteria already established, and agency feedback regarding the amendment. Commissioner Swisher described the proposed criteria as he understood them. He recommended that an added criterion focus toward areas closer to the UGB (Urban Growth Boundaries) of cities. Commissioner Hudson replied to the statement saying he perceived that the NPR 10 amendment was an opened and closed window, but the NPR 20 would need more criteria established. Vice Chair Kirby stated that proposed and listed in the original packet discussed during the work session on this matter. However, she would like to look at them more thoroughly for clarity and for the potential of adding criteria. Commissioner Kieras said that her perspective is that the criteria were discussed, but she would like to see more added. One of the criteria she would like to see added is that properties should be located near a UGB. She feels this is important for a number of reasons including providing county services. She added that this seems like a logical approach and would help remedy the perception that the process has been considered ad hoc. Commissioner Beeger wanted to clear up the perception that most growth occurs within the UGB. He said that 47% of growth since 2010 has occurred in the rural county. Commissioner Palcic says that it feels as though we are building the airplane as we are flying it. He would like to start from the beginning and review the Comprehensive Plan in its entirety to address some of these issues. He felt this will cause us to be more proactive than reactive. Vice Chair Kirby wanted to clarify if he meant the County should stop processing Comprehensive Plan amendments entirely. There was discussion about waiting to update the Comprehensive Plan and how long staff should wait to do so. Director Lelack said that an update is slated for initiation in 2021. Staff described the initiation of amendments from the Board and the process that has been underway for many years regarding these lands. Mr. Gutowsky said that staff was July 11, 2019 Planning Commission Minutes Page 3 of 5 hoping to kill two birds with one stone by correcting the designations of the 6 residentially committed areas, and direction from the Board to address lands that are not suitable for farming or foresting but are zoned as such. There was discussion about the intent of the motion, moving forward, and clarifying Board Direction. Commissioner Hudson re -read his motion: Commissioner Hudson moved that the County extend the principle to allow NPR rezoning of other EFU/Forest zoned land throughout the County based upon criteria to be refined, a process and a policy to be determined suitable for inclusion in the Comprehensive Plan revision. Seconded by Palcic. Commissioners Palcic, Beeger, Swisher and Hudson were in favor. Chair Crawford, Vice Chair Kirby and Commissioner Kieras were opposed. Motion passed. Commissioner Swisher commented that he is ready to start the process, but would feel more comfortable checking with the Board of County Commissioners beforehand. Commissioner Swisher moved to set a timeline for the process and continued work on this topic should the County Commission affirm that they would like to the Planning Commission to continue. Commissioner Kieras seconded. Vice Chair Kirby commented that she felt we are kicking the can down the road when we already had direction from the BOCC, and that this could result in postponing the recommendation for another 4-6 weeks. Chair Crawford expressed concerns about continuing the discussion any further this evening. There was discussion about whether or not discussion should continue tonight. It was decided to address other matters first before further discussion on this topic. The motion vote was as follows: Commissioner Palcic, Commissioner Beeger, Commissioner Swisher, Commissioner Hudson, and Commissioner Kieras were in favor. Vice Chair Kirby abstained. Chair Crawford was opposed. The motion passed. Chair Crawford called for a vote on the tabled motion from July 9th: Commissioner Swisher moved co -write a letter with the Board of County Commissioners encouraging DLCD rulemaking regarding Non Resource Lands. Vice Chair Kirby seconded. Commissioner Swisher wondered if these topics would be brought up concurrently to the board. Staff said they would. Commissioner Beeger asked if other counties had done this. Staff said that there are other counties that have completed this process. Commissioner Palcic, Commissioner Beeger, Commissioner Swisher, Commissioner Hudson, and Commissioner Kieras were in favor. Chair Crawford and Vice Chair Kirby abstained. The motion passed. It was requested that staff provide a list of criteria for further deliberations on the amendment. Some Commissioners requested this list in a table format. July 11, 2019 Planning Commission Minutes Page 4 of 5 There was clarification for the formal removal of Policy 3.11.15 from the amendment. This policy relates to Goal 5 inventories and resources and has been struck from the amendment. There was discussion about the next steps, clarification of the motion, and the intention of the Commission. The Commission has made a decision to approve proposal 1 and ask for approval to research and develop additional criteria for proposal 2. Commissioners explained that there was no intention to halt comprehensive plan updates until a complete revision can be completed. There was discussion about the complexity of this issue, the further discussion of criteria, and discussion on the letter sent to DLCD. V. Planning Commission & Staff Comments Director Lelack provided scheduling options for the next few meetings given the substantial amount of topics. It was decided to continue NPR discussions on August 8th, unless more time is needed in which case the Commission could consider a meeting on the 15th. Mr. Gutowsky said that he felt staff let the Commission down for this topic and is looking forward to a debriefing session to address areas of improvement. Commissioner Hudson said that it has been an evolving project with a response that was not cut and dried. He thinks that the staff did well, but believes there should always be a debriefing session. Commissioner Palcic said he is excited that the Commission took action and did not wait for complete attendance. Commissioner Beeger complemented his fellow Commissioners on their flexibility. Commissioner Kieras said she felt this meeting was a very positive experience. Even though she disagreed with some points she never felt uncomfortable. Chair Crawford discussed some of the history surrounding the Terrebonne couplet and the group of citizens there that began the process in 2017. Next Planning Commission meeting will be on July 25, 2019. There being no further business, the meeting was adjourned at 8:19 pm. Respectfully submitted, Ashley Williams Administrative Assistant All materials including (but not limited to) video, presentations, written material and submittals are subject to the County Retention Policy; All items are posted and available for public viewing on the Deschutes County Meeting Portal. For further detail on this and other meetings please follow link below. https://deschutescountyor.iqm2.com/Citizens/Default.aspx July 11, 2019 Planning Commission Minutes Page 5 of 5 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 BOCC Monday Meeting of October 28, 2019 DATE: October 10, 2019 FROM: Whitney Hale, Administrative Services, 541-330-4640 TITLE OF AGENDA ITEM: 2019-20 Q2 Discretionary Grant Review RECOMMENDATION & ACTION REQUESTED: Review applications and determine awards for discretionary grant applications submitted for the second quarter of 2019-20. BACKGROUND AND POLICY IMPLICATIONS: Each quarter, the Board of Commissioners reviews applications submitted to the Deschutes County Discretionary Grant Program and makes awards accordingly. On October 28, 2019, the Board will consider requests made for activities to take place beginning on or about the second quarter of 2019-20. Applications and status work sheets are attached for the Board's consideration.. FISCAL IMPLICATIONS: If there are no fiscal implications, indicate "none". If any amount of money is changing hands, there are fiscal implications. Be sure to indicate whether the revenue or expenditure has been budgeted ATTENDANCE: Whitney Hale, Administrative Services DISCRETIONARY PROGRAM Q2 2019 �UK&�&8���� GRANT ^°~�""^.°.°^"^" Leadership Bend 2020 CBD Education VVellness Grants Donor Management Software ChtcaI Home Repairs Online Startup and Nonprofit Incubator Program Sponsorship of Scholarship for Leadership Redmond LessonPLAN - Education and Outreach Program Printing of Community Wildfire Protection Plan Brochure Commissioning of USS Oregon Youth Orchestra Collaboration Concert Americana Project Arts Outreach Scholarship Emergency Service Funds UpgradHg Computer System , .. ek,..,.., $2,500 $1,250 S2'5OO 0 0 0 0 0 i..r) 0 0 0 0 0 0 0 0 0 0 0 L.fl 0 0 1.r) 0 C...) 0 Ln Ln o c) Ln (3-.) 0o o o oo , Ln c -Cf ,---- 00 c‘ H ,----- ,- Ln ,--- 01 ,--- , t.fi (A 1.79 F.F1 kA 4A VI 00 00 bri- 00 !-(:/:!) Assistance League of Bend Bend N EXT Children Learning through Education and Research (CLEAR) Alliance Education Foundation for Bend -La Pine Schools The Giving Plate Habitat for Humanity La Pine Sunriver OSU-[ascadesInnovation Co -Lab Redmond Chamber Tower Theatre Foundation Upper Deschutes River Communities Coalition USS Oregon Commissioning Committee Central Oregon Youth Orchestra Sisters Foil< Festival Dawn's House Healing Reins tOt, w 0z atl ij Q� 00 mu COFO Fundraiser Awareness FAN Annual Luncheon Festival of Trees Fundraiser Empowering Families Luncheon 0 E c 0 N O N U O O tR 0 10 c 0 LL z Q 0 0 z 0 V >, E n; LL 0 E 13 0 a Q N O DISCRETIONARY GRANT Q2 PROGRAM STATUS (9 03 Ln Q1 Contributions APPEAL APPLICATION - BOARD OF COUNTY COMMISSIONERS FEE: EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided. It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Central Land and Cattle Company, LLC Phone: (541 ) 350-8479 Mailing Address: 2447 NW Canyon City/State/Zip: Redmond, OR 97756 Land Use Application Being Appealed: 247-19-000611-A (remand LUBA No. 2018-140) Property Description: Township 15 Range 12 Section 00 Tax Lots 7700,7800, 7801, 7900 Appellant's Signature: AG-ki2¢/Lert. Z72La4/202.att-Date: October 25, 2019 BY SIGNING THIS APPLICATION AND PAYING THE APPEAL FEE, THE APPELLANT UNDERSTANDS AND AGREES THAT DESCHUTES COUNTY IS COLLECTING A DEPOSIT FOR COSTS RELATED TO, PREPARING FOR, AND CONDUCTING A PUBLIC HEARING. THE APPELLANT WILL BE RESPONSIBLE FOR THE ACTUAL COSTS OF THE HEARING PROCESS. THE AMOUNT OF ANY REFUND OR ADDITIONAL PAYMENT WILL DEPEND UPON THE ACTUAL COSTS INCURRED BY THE COUNTY IN REVIEWING THE APPEAL. Except as provided in section 22.32.024, appellant shall provide a complete transcript of any hearing appealed, from recordings provided by the Planning Division upon request (there is a $5.00 fee for each recording copy). Appellant shall submit the transcript to the planning division no later than the close of the day five (5) days prior to the date set for the de novo hearing or, for on -the -record appeals, the date set for receipt of written records. 1 1 7 NW Lafayette Avenue, Bend, Oregon 97703 P.C. Box 6005, Bend, OR 97708-6005 "Q (541) 388-6575 cdd@deschutes.org www.deschutes.org/cd NOTICE OF APPEAL See attached Notice of Appeal. (This page may be photocopied if additional space is needed.) NOTICE OF APPEAL BY CENTRAL LAND AND CATTLE COMPANY, LLC Decision Appealed and Background The decision appealed is a decision issued by Deschutes County Hearings Officer Dan R. Olsen entitled "Hearings Officer Decision." The decision is dated October 14, 2019 and was mailed on October 15, 2019. The decision was issued after the appellant, Central Land and Cattle Company, LLC ("CLCC") filed a request in August 2019 that the County proceed to affirm its approval of a tentative plan and site plan for development of the Thornburgh Destination Resort after a remand on remanded a single narrow issue by the Oregon Land Use Board of Appeals ("LUBA"). LUBA found a single error in the drafting of one of the hearings officer's conditions of approval of the land use applications. In the appealed decision, Hearings Officer Olsen found that he lacked jurisdiction to consider the application on remand because Ms. Gould's attorney made a failed attempt to file a petition for review of LUBA's decision with the Oregon Court of Appeals. The Oregon Court of Appeals dismissed the appeal after two reviews of the matter because the petition was not received by the Court until after the filing deadline and, therefore, the Court of Appeals did not acquire jurisdiction to review LUBA's decision. A timely filed appealed is required by law to vest jurisdiction in the Court of Appeals per ORS 197.830(3). Reasons for Board to Hear CLCC's Appeal The issue on remand from LUBA is narrow. LUBA simply asks the County to assure that the source of mitigation water is one approved by the FMP's fish mitigation plan that will continue to meet the "no net loss/degradation" approval criterion of the County's resort code when the mitigation water rights are required to be used as mitigation (prior to the resort's use of groundwater). CLCC has secured the right to purchase mitigation water rights from Big Falls Ranch. These water rights are specifically identified by the FMP as the best quality water rights because they provide mitigation of water temperature impacts as well as water quantity impacts. The no net loss/degradation standard is a County code requirement so the Board's interpretation and application of the standard will be entitled to deference by LUBA. Currently, Ms. Gould has petitioned for review by the Oregon Supreme Court. If the court does not accept review of the petition, the issue of whether the Board will have jurisdiction to decide CLCC's appeal will be resolved and the Board will clearly have jurisdiction to issue a decision. Ms. Gould is using her attorney's error in failing to file her petition for review of LUBA's decision as a sword to harm or destroy CLCC's resort project by delaying approval of the County -approved tentative plan and site plan that are permitted by the County -approved Final Master Plan for the Thornburgh Destination Resort. This follows a long line of appeals by Ms. Gould spanning 13 years — all with the purpose of making it infeasible for CLCC to proceed with development of the Resort. Page 1 — Notice of Appeal (CLCC) Gould believes that building a destination resort is wrong. One of her attorneys has advised CLCC that Ms. Gould "believes there is no right way to do the wrong thing (build the resort)." Ms. Gould's opposition is not about insuring that Thornburgh complies with resort code requirements, it is about killing the project by delaying it and burdening it with legal expenses to defend appeals. A decision to decline review would support Gould's delay tactics. It will require an unnecessary set of appeals to LUBA, the Court of Appeals and the Oregon Supreme Court. Such appeals would not resolve the merits of the remand. They would only address the issue of whether the County had jurisdiction now — when it made the current decision; not whether the County has jurisdiction in the future when the issue may be resolved by action of the Oregon Supreme Court. If CLCC is forced to appeal the Olsen decision to LUBA now, a review on the merits will likely not occur until after these lengthy appeals are completed. CLCC, therefore, asks the Board to accept review and to issue a decision that addresses the merits of the remand. CLCC is willing to wait until the Oregon Supreme Court decides whether to hear Gould's challenge to the dismissal of her appeal which if rejected will significantly narrow the issues on appeal. Ms. Gould's legal position is that the Board will have jurisdiction to issue a decision if her appeal is not heard by the Supreme Court. Only the Board of Commissioners can resolve the merits of this case. Additionally, only the Board may resolve the jurisdictional issue by waiting for action by the Oregon Supreme Court. If CLCC is forced to appeal to LUBA, it will not be able to correct the alleged jurisdictional defect by having the County wait to issue a decision until the Gould appeal is settled. This is clearly the most efficient manner in which to proceed in a case that has been delayed by Ms. Gould's filing of unending appeals of land use decisions, water permits and water transfers, Land Use Compatibility Statements (LUCS) and the BLM's grant of a road right-of-way over federal lands to provide secondary access to the resort.1 1 The following is a list of the land use appeals (only) filed by Ms. Gould in Oregon appellate courts. It does not include the appeals she filed with Deschutes County. It does not include her challenges to decisions of the Bureau of Land Management or Oregon Water Resources and does not include her recent challenge of the issuance of a Land Use Compatibility Statement for the transfer of the point of appropriation of water rights not associated with the Thornburgh __1___ 1___ Big T_11_ T _ 1_ based .l. 1 mitigation pima by nig rails Ranch oaseu on the spurious claim that this transfer required the County to make a land use decision regarding the Resort FMP/fish mitigation plan: Gould v. Deschutes County, 51 Or LUBA 493 (2006)(appeal of decision of Board of Commissioners to initiate review of hearings officer's decision) Gould v. Deschutes County, 54 Or LUBA 205 (2006)(appeal CMP approval) Gould V. DC.) chute, County, 216 Of App 150 (200 7)(appeal of U1ViP) Gould v. Deschutes County, 57 Or LUBA 403 (2008)(appeal of CMP) Gould v. Deschutes County, 227 Or App 601 (2009)(appeal of CMP) Gould v. Deschutes County, 59 Or LUBA 435 (2009)(appeal of FMP) Gould v. Deschutes County, 347 Or 258 (2009)(petition for review of CMP to Supreme Court) Gould v. Deschutes County, 233 Or App 623 (2010)(appeal of FMP) Gould v. Deschutes County, 67 Or LUBA 1 (2013)(appeal of declaratory ruling re vesting of CMP) Page 2 — Notice of Appeal (CLCC) CLCC pursued review of its land use approval on the remand because State law says that the appellate court system does not acquire jurisdiction if an appeal is improperly filed and State law also requires CLCC initiate a remand within 180 days of when LUBA's decision is final. ORS 215.435(2)(a). The consequence of failing to initiate a remand is to render the County's approval of CLCC's land use applications void. It is unclear whether this 180 -day period is, unlike the 120 -day clock, stayed by Gould's appeal to the Oregon Supreme Court. ORS 215.435. It is nearly certain, however, that if CLCC had chosen to wait to initiate a review on remand until after the running of 180 -day period, Gould would have argued the tentative plan and site plan approval issued by the County in 2018 was no longer valid. This would mean that CLCC would be forced to start all over again with the review of its tentative plan and site plan applications at considerable expense in terms of time and money. This would impose a significant hardship on CLCC. Thus, CLCC is in a possible "lose -lose" situation if the Board of Commissioners does not agree to hear this matter and place the case on hold, as requested below, until the Oregon Supreme Court acts on Gould's petition for review. Jurisdiction of Board of Commissioners It is uncontested that Deschutes County has jurisdiction to hear an appeal of the hearing officer's decision and to consider the merits of the issue on remand. The only point of disagreement between opponents and the applicant is whether the County has jurisdiction to issue a decision before Gould's appeal of an order of dismissal is completed. We have attached two pages of post -hearing arguments filed by Mr. Kleinman on behalf of Ms. Gould that state that this is a correct legal position (Exhibit A). Gould v. Deschutes County, 256 Or App 520 (2013)(declaratory ruling) Gould v. Deschutes County, Or LUBA (LUBA No. 2014-080, 1/30/2015)(appeal Board approval of declaratory ruling re CMP) Gould v. Deschutes County, 272 Or App 666 (2015)(declaratory ruling) Central Land and Cattle Co, LLC v. Deschutes County, 74 Or LUBA 326 (2016)(Gould cross - appealed) Central Land and Cattle Co, LLC v. Deschutes County, 283 Or App 286 (2016)(petition for review of FMP filed by Gould; cross appeal by CLCC) Central Land and Cattle Co, LLC v. Deschutes County, 361 Or 311, 393 P3d 1165 (2017)(FMP appeal to Supreme Court) Gould v. Deschutes County, Or LUBA (LUBA No. 2018-008, 8/21/18)(FMP) Gould v. Deschutes County, Or LUBA (LUBA No. 2018-140, 6/21/19)(appeal of tentative plan/site plan approval) Gould v. Deschutes County, Court of Appeals No. A171603 (appeal of dismissal of petition for review). Gould v. Deschutes County, Supreme Court No. N008578 (appealed dismissal by Court of Appeals). Page 3 — Notice of Appeal (CLCC) 120 Day Rule The issue regarding jurisdiction will be effectively settled in about 45 to 75 days if the Oregon Supreme Court declines to hear Gould's petition for review of the Court of Appeals' dismissal of her LUBA appeal due to a lack of jurisdiction. CLCC agrees to toll the 120 -day decision clock of ORS 215.435 that applies to the County's review of cases on remand by LUBA or appellate courts to allow the Board to hear this appeal after the Supreme Court has acted on the pending petition. Specifically, CLCC agrees to: 1. Toll the 120 -day clock until the date the Oregon Supreme Court decides whether to hear Gould's petition for review. 2. Toll the 120 -day clock for an additional period of time to give the Board 120 days from the date the Supreme Court decides whether to hear Gould's appeal to decide the CLCC appeal. 3. Agree to work with County staff to further extend the 120 -day review clock, if needed, to enable staff and the Board to make and draft a well -considered decision. Deschutes County's staff reached out to Ms. Gould's attorney, Jeff Kleinman, to confirm the statements he made at the land use hearing before Hearings Officer Olsen. Mr. Kleinman advised the hearings officer that Ms. Gould would not object to tolling the 120 -day clock and would "state for the record" that Gould would waive "any argument then that a final resolution further out would require the applicant to start over." See, August 27, 2019, Video of Land Use Hearing posted on County's website beginning at 28:00 minutes into the hearing, incorporated by reference herein. In response to staff's query, Mr. Kleinman declined to honor this waiver and told the County Gould will object to tolling the 120 -day clock. Prior to speaking with Mr. Kleinman, County staff told CLCC that it would recommend that the Board hear a CLCC appeal, if filed. After Mr. Kleinman took this position, County staff changed its position and decided to recommend the Board not hear CLCC's appeal. We are disappointed because erred in relying on staff's position in deciding to decline the hearings officer offer to place his decision on hold. We now must ask the Board to accept review and place the review on hold to achieve the same result we could have achieved by action of the County's hearings officer. We ask the Board to hear this appeal because Mr. Kleinman's potential objection if raised wouid be both frivolous (entirely lacking in legal merit) and inconsistent with his argument that the Board currently lacks jurisdiction to approve the land use application. As a result, Mr. Kleinman's potential objection should not dissuade the Board of Commissioners from hearing the CLCC appeal. Mr. Kleinman's legal position is wrong because state law makes it crystal clear that the Board has a legal right to make a decision on remand after the expiration of the 120 -day period. In any case, where a writ of mandamus is filed by the applicant after 120 days has elapsed, the only remedy provided by law is for the Circuit Court to direct the Board to make a land use decision after the 120 days has elapsed. ORS 215.437. Additionally, the law provides no remedies whatsoever for opponents for a violation of the 120 -day period. ORS 215.435 and 215.437. Page 4 — Notice of Appeal (CLCC) An objection by Gould to an extension of the 120 -day clock is inconsistent with Gould's legal position that her appeal has not been resolved by appellate court judicial review and that the County, therefore, does not have jurisdiction to act. According to ORS 215.435 (1) the 120 -day period "shall not begin to run until final resolution of the judicial review." If, as Gould claims, the court has jurisdiction, it has not reached a final resolution of the judicial review of her appeal. Standing The applicant is Central Land and Cattle Company, LLC ("CLCC"). It is the owner of land approved for development as the Thornburgh Resort. It is the applicant that sought approval of the 2018 tentative plan and site plan that was remanded to Deschutes County by the Oregon Land Use Board of Appeals in June of 2019 in LUBA No. 2018-140 on the single -issue that one of the conditions of approval drafted by the County's hearings officer failed to provide for public participation in a post -approval review process. It is the party that initiated the review of LUBA's remand by Deschutes County in early August of 2019. Statement of Specific Reasons for Appeal 1. Jirisdiction did not vest in the Oregon Court of Appeals to review Gould's petition for review of LUBA's decision because Gould's attorney failed to file the petition for review within the period required by law. ORS 197.850(3). His attempt to file the petition by certified mail on the last day of the appeal period failed because his staff mailed the petition by first-class mail. As a result, the day the petition was received by the Court Administrator, after the appeal deadline had expired, is the date of filing with the Court of Appeals. ORS 19.260 (1). Chapman v. State of Oregon, 298 Or App 603 (2019). 2. The County has authority to address the narrow remand issue presented by LUBA's decision. The Hearings Officer should have addressed and resolved the issue on the merits so that it and the jurisdictional issue could be reviewed together. 3. The hearings officer erred in failing to recognize the fact that ORS 197.830(3), the law that says the timely filing of a petition of review is jurisdictional, has the same legal effect as ORS 19.255 that says that jurisdiction of an appeal vests when the notice of appeal vests." This is the gist of the Oregon Supreme Court's decision in Southwest Forest Industries v. Anders, 299 Or 205, 701 P2d 42 (1985)(a failure to file an petition for review of an administrative decision within the statutory time limits is the key to jurisdiction in the Oregon Supreme Court). In SW Forest Industries the Supreme Court rejected the argument that ORS Chapter 19 and that the mailing rules of ORS 19.028 (now ORS 19.260) do not apply to appeals from administrative tribunals such as LUBA. Based on his erroneous finding regarding the effect of failing to comply with ORS 19.028's filing rules, the hearings officer erroneously concluded that the finding of the Oregon Supreme Court in Pohrman v. Klamath Fall Comm., 272 Or 390, 397, 538 P2d 70 (1975) that "when a notice of appeal is timely served and filed, the appellate court has jurisdiction***" did not support CLCC's position that jurisdiction did not vest in the Oregon Court of Appeals because a timely appeal was not filed. Page 5 — Notice of Appeal (CLCC) 4. Pohrman and ORS 197.830(3) make it clear that because Gould failed to file her appeal as required by law, the appellate court system did not acquire jurisdiction of the appeal. It is now reviewing Gould's challenge to the dismissal but the court system is not reviewing Gould's appeal on its merits. The cases relied on by the hearings officer to find that the appellate courts acquire jurisdiction are not based on a case where an appellant failed to file a timely appeal. To find otherwise would allow any participant in a land use matter to delay County review by filing an appeal long after appeal deadlines had expired until the matter had been dismissed by the Court of Appeals, the dismissal had been dismissed after reconsideration (a process that takes approximately one month's time) and a petition for review is filed and considered by the Supreme Court (an almost two month delay by Gould to file the petition followed by a delay of two to three months or longer for the court to determine whether to hear an appeal). Ms. Gould's attorney mailed her petition for review to the Court Administrator on the last day of the appeal period. The date the petition is received by the Court is, by law, the date it is filed unless she complied with ORS 19.260 and sent the petition to the court by a means of delivery that complies with ORS 19.260 or unless she filed the petition electronically. In this case, Ms. Gould did neither and the appellate courts never acquired jurisdiction over the appeal. Given this fact, Deschutes County is not deprived of jurisdiction to act on LUBA's remand because the appellate courts did not acquire jurisdiction in the first place. Pohrman at 397; State v. Harding, 347 Or 368, 223 P3d 1029 (2009)(neither the Supreme Court nor the Court of Appeals has jurisdiction over an appeal if an appellant files his appeal by first-class mail and it is not received by the court until after expiration of the appeal period); McCall v. Kulongoski, 339 Or 1986, 118 P3d 256 (2005)(the timely filing and service of a notice of appeal gives an appellate court jurisdiction over the issue on appeal, to the exclusion of the lower court. State ex rel Juvenile Dep't of Multnomah County v. MU (In re J.H), 229 Or App 35, 210 P3d 254 (2009)(jurisdiction vests when a notice of appeal is timely filed and not otherwise); Southwest Forest Industries v. Anders, 299 Or 205, 701 P2d 42 (1985); McQuary v. Bel Air Convalescent Home, Inc., 296 Or 653, 678 P2d 1222 (1984)(timely filing is jurisdictional). 5. The Oregon Supreme Court, if it hears Gould's appeal, will only consider procedural arguments regarding Gould's appeal of LUBA's decision. They will not address the merits of LUBA's decision. Given this fact, it is logical to conclude that the merits of LUBA's decision may be addressed on remand. 6. The fact that Ms. Gould has appealed a dismissal of her appeal to the Oregon Court of Appeals because was it filed with the court after the filing deadline does not deprive Deschutes County of the authority to consider the single issue remanded to the County by LUBA. The single remand issue was decided in favor of Gould by LUBA. It is not subject to challenge on appeal as CLCC has not appealed. It, therefore, is appropriate to address and resolve this issue now. Even if Gould succeeds on her petition for review and is able to appeal other issues, those can be decided independent of the issue remanded by LUBA. Page 6 — Notice of Appeal (CLCC) 7. The Hearings Officer should have determined that Gould failed to vest jurisdiction in the appellate court system in line with the two appellate decisions that have dismissed the Gould appeal. Ms. Gould was required to file her petition for review of LUBA's decision no later than July 12, 2019. On that day, the very last day of the appeal period, her lawyer Mr. Kleinman decided to file the petition for review by mail rather than by the Court's preferred method of service which is by electronically filing (e -filing) the petition for review with the Court Administrator. ORS 19.260(1) requires that petitions for review be mailed certified or registered mail or by a superior class of service. Mr. Kleinman understood this fact and certified on the petition for review that he had mailed it to the court by certified mail. Mr. Kleinman, however, failed to assure that the petition was sent to the court by certified mail. The petition was mistakenly mailed by first-class mail and, therefore, was dismissed by the Appellate Commissioner of the Court of Appeals when it was received after the expiration of the appeal period. Ms. Gould filed a Motion for Reconsideration of the Oregon of Dismissal on July 31, 2019 that was denied by the Chief Judge of the Court of Appeals on August 5, 2019. Ms. Gould next delayed resolution of this matter by obtaining approval of a request to extend the 30 -day appeal deadline for seeking review by the Oregon Supreme Court by 28 days and by filing a petition for review by the Supreme Court on October 8, 2019. A revised petition was filed October 18, 2019. 8. Ms. Gould's arguments on jurisdiction lack merit for the reasons provided in CLCC's response to Gould's July 31, 2019 Petition for Reconsideration of the dismissal of the Gould appeal, Exhibit B, and in CLCC's Response to Gould's Petition for Review by the Oregon Supreme Court, Exhibit C. These documents are incorporated by reference herein. Type of Review Requested CLCC asks the Board to hear its appeal on the record regarding the issue on remand from LUBA and to hear the jurisdictional issue de novo. The reason for requesting a de novo review regarding the jurisdictional issue is to allow CLCC to provide the Board with new information about the status of Gould's petition for review by the Supreme Court that will occur after the end of the appeal period of the Olsen decision. This information will be essential in making a determination of the appealed issue. We are recommending that LUBA' s narrow issue on remand be considered by the Board on the record. We make this recommendation on the record because, during the review of the remand by the hearings officer, the opponents raised about 40 issues that are outside the scope of review on remand, including issues that were resolved by the Board back in 2007. If de novo review is allowed, we expect that Ms. Gould and the other opponents will seek to create confusion and slow down review with another round of complaints about the resort that are outside of the scope of remand. The record is well-developed and establishes that CLCC is entitled to approval of its tentative plan and site plan application and that it will fulfill the obligations imposed by the FMP. Page 7 — Notice of Appeal (CLCC) If the Board accepts review and decides to hear all issues de novo, the applicant asks that the Board excuse the applicant from the requirement to file a transcript of the hearing before the hearings officer. Page 8 — Notice of Appeal (CLCC) JEFFREY L. KLEINMAN i i ;1 ED ATTORNEY AT LAW THE AMBASSADOR 1207 S.W. SIXTH AVENUE PORTLAND, OREGON 97204 TELEPHONE (503) 248-0808 FAX (503) 228-4529 EMAIL KleinmanJL@aol.com Sri' O 2019 Ocschats Coll,lty CDD September 10, 2019 POST -HEARING MEMORANDUM TO: Deschutes County Land Use Hearings Officer FROM: Jeffrey L. Kleinman RE: File No. 247-19-000611-A, Thornburgh Destination Resort Subdivision This memorandum is submitted on behalf of Annunziata Gould at the close of the initial 14 -day open record period herein. We reiterate the contents of Ms. Gould's August 27 hearing memorandum, and incorporate that memorandum by reference here. A. DESCHUTES COUNTY AND ITS HEARINGS OFFICER LACK JURISDICTION OVER THIS MATTER. We reiterate that the county and its land use hearings officer lack jurisdiction to issue a decision in this matter and lack the authority to act on the applicant's requests. This will remain the case so long as Ms. Gould's appeal remains pending before the appellate courts. This case cannot be in two places at the same time. Ms. Gould participates in this proceeding without waiving her argument as to jurisdiction, or waiving any applicable time limits. At the same time, we wish to clarify and correct the argument regarding jurisdiction we have previously set out. The county is not in fact foreclosed from EXHIBIT A conducting hearings on the issue(s) on which LUBA issued its remand. However, the county and its hearings officer lack jurisdiction to adopt a decision herein so long as Ms. Gould's appeal remains before the Court of Appeals or the Supreme Court of Oregon. Foland v. Jackson County, 70 Or LUBA 247, 252-54 (2014), citing Standard Insurance Co. v. Washington County, 17 Or LUBA 647, 660, rev'd on other grounds, 97 Or App 687, 776 P2d 1315 (1989). LUBA will reverse a decision issued before the final resolution of such appeal(s). Id. The appellate courts retain exclusive jurisdiction until such time as an appellate judgment issues. Rhodes v. City of Talent, 50 Or LUBA 415, 422 (2005). With respect to the continued pendency of Ms. Gould's appeal, a copy of her motion for extension of time within which to file the petition for review in the Supreme Court of Oregon, filed on September 9, 2019, is attached as Exhibit A. B. RESPONSE TO MATTERS SET OUT IN CLCC'S HEARING MEMORANDUM. The hearing memoranda submitted by the parties overlap in many ways, so that much of the argument set out by the applicant does not require further response here. However, we will respond briefly to some of the points raised by the applicant. (1) The applicant did cross-appeal Condition 1 7(bl condition �a J The .+�Yr1lVuaau �All.a not cross-appeal tLtltlV{Aa and contest Condition 1 /`l/l. The condition Vll says what it says. The applicant misconstrues the BOCC's earlier decision, an excerpt of which it presented as Exhibit D. (CLCC Memo 2) Nothing in the BOCC's discussion relates to the county's mitigation requirements, the no net loss/degradation standard of DCC 18.13.070(D). The BOCC's discussion does not address fish habitat at all. Page 2 - POST -HEARING MEMORANDUM OF ANNUNZIATA GOULD EXHIBIT A 1 IN THE COURT OF APPEALS OF THE STATE OF OREGON ANNUZIATA GOULD, Petitioner, v. DESCHUTES COUNTY and CENTRAL LAND AND CATTLE COMPANY, LLC, Respondents. Land Use Board of Appeals No. 2018-140 Court of Appeals No. A171603 Respondent Central Land and Cattle Company, LLC's Response to Petitioner's Petition for Reconsideration of July 18, 2019, Order of Dismissal and Respondent Central Land and Cattle Company, LLC's Motion to Strike Petitioner's Opening Brief and Excerpt of Record EXPEDITED PROCEEDING UNDER ORS 197.850 AND ORS 197.855 Liz Fancher, OSB No. 812202 liz@lizfancher.com 644 NW Broadway Street Bend, OR 97703 Tel: 541-385-3067 For Respondent Central Land and Cattle Co., LLC David Adam Smith, OSB No. 170317 adam.smith@deschutes.org Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Tel: 541-388-6593 For Respondent Deschutes County Wendy M. Margolis, OSB 945675 wmargolis@cosgravelaw.com Cosgrave Vergeer Kester LLP 900 SW Fifth Avenue, 24th Floor Portland, OR 97204 Tel: 503-323-9000 Jeffrey L. Kleinman, OSB 743726 KleinmanJL@aol.com 1207 SW Sixth Avenue Portland, OR 97204 Tel: 503-248-0808 For Petitioner Annunziata Gould EXHIBIT B 2 Relevant Facts Petitioner Gould mailed a Petition for Judicial Review seeking review of the final opinion and order of the Land Use Board of Appeals ("LUBA") in LUBA No. 2018-140 on July 12, 2019. The Petition for Judicial Review was mailed to the Appellate Court Administrator by first-class mail. Petitioner did not file the Certificate of Filing required by ORAP 4.15(4) with the Petition for Judicial Review.1 The Petition for Judicial Review was received by the Court Administrator on July 15, 2019; three days after the July 12, 2019 filing deadline established by ORS 197.850(3). On July 18, 2019, the Court's appellate commissioner determined that the Petition for Judicial Review was filed on July 15, 2019 and, therefore, entered an Order of Dismissal. Petitioner filed a "Petition for Reconsideration of the Order of July 18, 2019, Order of Dismissal" on July 31, 2019. On the same day, Petitioner filed a "Certificate of Mailing Under ORS 19.26(1)(b)" and a "Corrected Certificate of Service and Filing of Petition for Judicial Review."2 Petitioner Gould filed an 1 Petitioner filed only a Certificate of Service, as disclosed by its heading. The footer of the document erroneously refers to the certificate as a "Certificate of Service and Filing." 'The "Corrected Certificate of Service and Filing of the Petition for Judicial Review" states that Mr. Kleinman filed the petition for judicial review by first- class mail on July 12, 2019 but his Declaration states that Colleen Ezeobi mailed the petition for judicial review to the Court. EXHIBIT B 3 Opening Brief and Excerpt of Record with the Appellate Court Administrator on August 2, 2019. Summary Response Respondent Central Land and Cattle Company, LLC ("CLCC") requests that the Court affirm its Order of Dismissal of Petitioner Gould's Petition for Judicial Review consistent with its recent decision of State of Oregon v. Chapman, 298 Or App 603 (2019) and ORS 19.260(1), ORS 19.270(1) and (2)(b) and ORS 197.850 (3). Response to Petition for Reconsideration Filing by First -Class Mail Gould mailed her Petition for Judicial Review by first-class mail to the Court of Appeals on July 12, 2019. Under the majority opinion in Chapman, first-class mail is a class of service calculated to achieve delivery within three business days. It is not a class of service calculated to achieve service within three calendar days — the time period prescribed by ORS 19.260(1) for filing appeals by mail. Id. at 611. As a result, the date of filing of the Petition for Judicial Review is the date received by the Court. The Petition was received on July 15, 2019 after expiration of the filing deadline. The Order of Dismissal, therefore, should be affirmed. ORS 19.270(1) and (2)(b); ORS 197.850 (3). EXHIBIT B 4 The Court's dismissal of Gould's appeal is also supported by the reasoning of the concurring and dissenting opinions in Chapman.3 In the view of the concurrence and dissent, the date of mailing is the date of filing if the appeal is mailed by first-class mail on a day when three business days is synonymous with three calendar days. Otherwise, the date of filing is the date the appeal is received by the Court. Id. at 618. As Gould filed her appeal on a Friday, the three business day delivery calculated for first- class delivery by the US Postal Service was not synonymous with three calendar days. Instead, it was a period of five calendar days (Wednesday, July 17, 2019). Gould argues in her Petition for Reconsideration that first-class mail is a class of delivery calculated to achieve delivery "to Salem" within three calendar days because the receipt for payment obtained from the US Postal Service by her attorney's paralegal estimated a delivery date of July 15, 2019. Pet. Recon. 7. This argument lacks merit, however, because the Chapman majority makes it clear that the date of mailing a petition for judicial review by first-class mail is never the date of filing. Id. at 604. Gould's argument is also inconsistent with the reasoning of the concurring opinion and dissent in Chapman that states that "the carrier's defined delivery period for the class of delivery used" determines whether the date of mailing is the date of filing. Id., at 618, fn 1. The defined 3 The dissent states it agrees with the concurring opinion's interpretation of the filing by mail requirements of ORS 19.260(1). Id. at 622. EXHIBIT B 5 delivery period for first-class mail is three business days; in this case five business days. Id. at 617, 622. As Gould's petition was not filed until it was received by the Court on July 15, 2019 it was not timely filed by the July 12, 2019 filing deadline. As a result, the Court did not acquire jurisdiction over Gould's petition. ORS 19.270(1) and (2)(b); ORS 197.850 (3). The Court should deny the Petition for Reconsideration. Response to Gould's Proof of Filing Argument Gould argues that she did not have "a reasonable opportunity to prepare and file the certificate of mailing required by ORS 19.260(1)(b)" before the appeal was dismissed. Gould claims that her attorney was waiting for a signed receipt for mailing by certified mail before filing a certificate of mailing. ORS 19.260(1)(b) requires certification and filing after petition for judicial review is mailed. ORCP 9.C(1) requires filing "within a reasonable time after service." waited until July 31, 2019 to file the proof of mailing required by ORS 19.260(1)(b). Contrary to the assumption made in Petitioner's argument, ORS 19.260(1)(b) does not require proof of receipt for certified mail; it requires proof of mailing. Proof of mailing is the receipt provided when items are mailed. ORAP 1.35(1)(b)(iii)(A). Mr. Kleinman's office obtained a receipt and certificates of mailing from the US Postal Service on July 12, 2019. See, EXHIBIT B 6 Exhibit 2 of the Kleinman Declaration of the Petition for Reconsideration. The receipt and certificates could have been filed as soon as the proof of mailing and certificates of mailing were obtained from the US Postal Service on July 12, 2019.4 Motion to Strike Petitioner's Opening Brief and Excerpt of Record CLCC moves the Court to strike Petitioner's Opening Br1Pf and Excerpt of Record because the Petition for Judicial Review has been dismissed and the Court lacks jurisdiction to decide the case on its merits unless and until the case is reinstated. ORS 19.270(1) and (2)(b); ORS 197,850 (3), CLCC also asks the Court to find that the briefing deadlines prescribed by ORAP 4.66 are either not in effect or are tolled by the filing of the Petition for Reconsideration. Petitioner filed her Opening Brief and Excerpt of Record on August 2, 2019 despite the fact the Court had issued an Order of Dismissal of her petition for judicial review on July 18, 2019. Although Petitioner filed a Petition for Reconsideration of the Order to Dismiss, Petitioner has cited no law that stands for the proposition that the briefing deadlines of ORAP 4.66 run after an appeal has been dismissed. Petitioner also has not cited any legal authority for the proposition that the filing of a Petition for Reconsideration of Order of 4 Petitioner Gould's failure to file a certificate of filing until July 31, 2019 Judicial Review is not addressed by Petitioner and is not excused by Petitioner's attorney's choice to wait to obtain a receipt for certified mail before filing proof of service. The certificate of filing required by ORAP 4.15(4) was required to be filed with the Petition for Judicial Review on July 12, 2019. EXHIBIT B 7 Dismissal grants the Court jurisdiction to review a Petition for Judicial Review on the merits while a Petition for Reconsideration is pending decision by the Court. The Court's rules do not directly address this situation but the obvious effect of an Order of Dismissal is to terminate the case and to relieve parties of their responsibility to act within the briefing deadlines set by ORAP 4.66. The Opening Brief and Excerpt of Record filed by Gould should also be stricken as the Court has no jurisdiction to consider it because Gould failed to timely file her Petition for Review. ORS 19.270(1) and (2)(a); ORS 197.850 (3)(filing petition within 21 days of mailing of LUBA's order is jurisdictional and may not be waived or extended). CLCC respectfully requests the Court to address this issue as promptly as possible because CLCC must determine whether to prepare and file a reply brief on or before August 23, 2019, the deadline that would have applied if Petitioner had timely filed her Petition for Judicial Review. DATED: August 5, 2019 Respectfully submitted, s/Liz Fancher Liz Fancher, OSB 812202 Attorney for Respondent CLCC EXHIBIT B 8 CERTIFICATE OF FILING AND SERVICE 1 certify that 1 filed the foregoing Response to Petitioner's Petition for Reconsideration of July 18, 2019, Order of Dismissal and Respondent Central Land and Cattle Company, LLC's Motion to Strike Petitioner's Opening Brief and Excerpt of Record by causing it to be electronically filed with the Appellate Court Administrator on August 5, 2019, through the appellate eFiling system. I further certify that service of a copy of the foregoing document will be accomplished on the following participants in this case, who are registered users of the appellate courts' eFiling system, by the appellate courts' eFiling system at the participant's email address as recorded this date in the appellate eFiling system on the following parties: David Adam Smith adam.smith@deschutes.org for Respondent Deschutes County Jeffrey L. Kleinman KleinmanJL@aol.com for Petitioner Annunziata Gould I certify that I have this date served each participant in this case who is not being served by the appellate courts' eFiling system by ordinary first class mail at the following address: Wendy M. Margolis Cosgrave Vergeer Kester LLP 900 SW Fifth Avenue, 24th Floor Portland; OR 97204 for Petitioner Annunziata Gould /s/ Liz Fancher Liz Fancher, OSB #812202 liz@lizfancher.com for Respondent Central Land and Cattle Company, LLC EXHIBIT B IN THE SUPREME COURT OF THE STATE OF OREGON ANNUZIATA GOULD, Petitioner, Petitioner on Review, v. DESCHUTES COUNTY and CENTRAL LAND & CATTLE CO., LLC, Respondents, Respondents on Review. Land Use Board of Appeals 2018140 A171603 S067074 RESPONSE TO PETITION FOR REVIEW by Respondent Central Land and Cattle Company, LLC Petition for Review of the August 9, 2019 Order of Court of Appeals Chief Judge James C. Eagan Denying Reconsideration of the Appellate Commissioner's Order Dismissing Judicial Review of a Final Opinion and Order by the Oregon Land Use Board of Appeals Liz Fancher, OSB No. 812202 liz@lizfancher.com 644 NW Broadway Street Bend, OR 97703 Tel: 541-385-3067 For Respondent on Review Central Land and Cattle Co., LLC David Adam Smith, OSB No. 170317 adam.smith@deschutes.org Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 Tel: 541-388-6593 For Respondent on Review Deschutes County Wendy M. Margolis, OSB 945675 wmargolis@cosgravelaw.com Cosgrave Vergeer Kester LLP 900 SW Fifth Avenue, 24th Floor Portland, OR 97204 Tel: 503-323-9000 Jeffrey L. Kleinman, OSB 743726 KleinmanJL@aol.com 1207 SW Sixth Avenue Portland, OR 97204 Tel: 503-248-0808 For Petitioner on Review EXHIBIT C TABLE OF CONTENTS i. Page Summary of Argument 1 Legislative Background and Intent 3 Petitioner's Conduct 4 Dismissal Proper Under All Opinions in Chapman 5 Gould's Interpretation of Statute is Fundamentally Flawed 6 Reasons to Decline Review 6 APPENDICES Chapter 80, Oregon Laws 2015 App -1 Testimony before Senate Committee on Judiciary, April 30, 2015 App -2 TABLE OF AUTHORITIES Cases Central Land and Cattle Co, LLC v. Deschutes County, 74 Or LUBA 326 (2016) 2 Central Land and Cattle Co, LLC v. Deschutes County, 283 Or App 286 (2016) 2 Central Land and Cattle Co, LLC v. Deschutes County, 361 Or 311, 393 P3d 1165 (2017) 2 Gould v. Deschutes County, 54 Or LUBA 205 (2006) 2 Gould v. Deschutes County, 216 Or App 150 (2007) 2 Gould v. Deschutes County, 51 Or LUBA 493 (2006) 2 Gould v. Deschutes County, 54 Or LUBA 205 (2006) 2 Gould v. Deschutes County, 216 Or App 150 (2007) 2 Gould v. Deschutes County, 57 Or LUBA 403 (2008) 2 EXHIBIT C Page Gould v. Deschutes County, 59 Or LUBA 435 (2009) 2 Gould v. Deschutes County, 347 Or 258 (2009) 2 Gould v. Deschutes County, 233 Or App 623 (2010) 2 Gould v. Deschutes County, 67 Or LUBA 1 (2013) 2 Gould v. Deschutes County, 256 Or App 520 (2013) 2 Gould v. Deschutes County, LUBA No. 2014-080 (1/30/2015) 2 Gould v. Deschutes County, 74 Or LUBA 326 (2016) 2 Gould v. Deschutes County, 283 Or App 286 (2016) 2 Gould v. Deschutes County, 361 Or 311, 393 P3d 1165 (2017) 2 Gould v. Deschutes County, LUBA No. 2018-008 (8/21/18) 2 Gould v. Deschutes County, LUBA No. 2018-140 (6/21/19) 2 State v. Chapman, 298 Or App 603 (2019) 1, 4-7 Statutes ORS 19.260 3, 4, 5 ORS 19.260(1) 1 ORS 19.260(1)(a) 5, 6 ORS19.260(1)(a)(A)1, 3 ORS 19.260(1)(a)(B) 1, 3, 4 ORS 19.260(1)(b) 3, 6 ORS 19.260(2) 5 ORS 19.260(2)(a)(A) 1, 3, 4 ORS 19.260(2)(a)(B) 3 ORS 19.260(2)(b) 3 ORS 19.260(4) 3 ORS 197.850 1 ORS 197.850(3)(a) 4 EXHIBIT C iii. Page ORS 197.850 1 ORS 215.427 1 Oregon Laws Chapter 80, 2015 Oregon Laws 3 Administrative Rules ORAP 9.07(1) 6 ORAP 9.07(2) 6 ORAP9.07(9)7 ORAP 9.07(11) 7 ORAP 9.07(13) 7 ORAP9.07(14)7 ORAP 9.07(16) 7 EXHIBIT C 1 Summary of Argument The Oregon Court of Appeals applied ORS 19.260(1) correctly twice. ORS 19.260(2)(a)(A) plainly states that the date of mailing by first-class mail is the date of service on parties. ORS 19.260(1)(a)(A), however, does not include first-class mail in its otherwise identical list; making it clear that the date of mailing by first-class mail is not the date of filing with the Court of Appeals. ORS 19.260(1)(a)(B) is not, contrary to Gould's assertion, a trap for unwary appellate practitioners. Its meaning was clear to Petitioner's attorney. He certified that Gould's petition for review was filed with the Appellate Court Administrator by certified mail and he directed his staff to mail the petition by certified mail. The issue presented by Gould's petition is not the legal issue presented by State of Oregon v. Chapman, 298 Or App 603 (2019)("Chapman"). While the Chapman court was divided on the issue presented to it, all opinions in Chapman (majority, concurring and dissent) support dismissal of the Gould appeal. Oregon law provides for the expedited review of land use applications by local government, ORS 215.427, and the Oregon Court of Appeals. ORS 197.850, ORS 197.855. Supreme Court review will significantly delay review of LUBA's order on the merits to address a procedural issue only. Delay will impose a significant hardship on Respondent Central Land and Cattle Co., LLC, EXHIBIT C 2 ("CLCC"), a developer whose development project has already been delayed for almost 13 years by numerous appeals filed by petitioner Gould in state and federal forums.' 'The following are the land use appeals (only) filed by Ms. Gould: Gould v. Deschutes County, 51 Or LUBA 493 (2006)(appeal of decision of Board of Commissioners to initiate review of hearings officer's decision) Gould v. Deschutes County, 54 Or LUBA 205 (2006)(appeal CMP approval) Gould v. Deschutes County, 216 Or App 150 (2007)(appeal of CMP) Gould v. Deschutes County, 57 Or LUBA 403 (2008)(appeal of CMP) Gould v. Deschutes County, 227 Or App 601 (2009)(appeal of CMP) Gould v. Deschutes County, 59 Or LUBA 435 (2009)(appeal of FMP) Gould v. Deschutes County, 347 Or 258 (2009)(petition for review of CMP) Gould v. Deschutes County, 233 Or App 623 (2010)(appeal of FMP) Gould v. Deschutes County, 67 Or LUBA 1 (2013)(appeal of declaratory ruling re vesting of CMP) Gould v. Deschutes County, 256 Or App 520 (2013)(declaratory ruling) Gould v. Deschutes County, Or LUBA (LUBA No. 2014-080, 1/30/2015)(appeal Board approval of declaratory ruling re CMP) Gould v. Deschutes County, 272 Or App 666 (2015)(declaratory ruling) Central Land and Cattle Co, LLC v. Deschutes County, 74 Or LUBA 326 (2016)(Gould cross -appealed) Central Land and Cattle Co, LLC v. Deschutes County, 283 Or App 286 (2016)(petition for review of FMP filed by Gould; cross appeal by CLCC) Central Land and Cattle Co, LLC v. Deschutes County, 361 Or 311, 393 P3d 1165 (2017)(FMP) Gould v. Deschutes County, Or LUBA (LUBA No. 2018-008, 8/21/18)(FMP) Gould appealed October 2018 hearings officer's approval of tentative plan/site plan to Board of County Commissioners, November 9, 2018. Gould v. Deschutes County, Or LUBA (LUBA No. 2018-140, 6/21/19)(appeal to tentative plan/site plan) Gould v. Deschutes County, Court of Appeals No. A171603. Gould v. Deschutes County, Supreme Court No. N008578. EXHIBIT C 3 Legislative Background and Intent In 2015, the Oregon Legislature amended ORS 19.260 to treat the date of dispatch "by a class of delivery calculated to achieve delivery within three calendar days" as the date of filing and service of an appeal or petition for review with the Oregon Court of Appeals or Oregon Supreme Court. ORS 19.260(1)(a)(B) and (b), (2)(a)(B) and (2)(b), and (4). It also amended ORS 19.260(1)(a)(A) that requires filing "by registered or certified mail" but did not amend it match ORS 19.260(2)(a)(A) which allows service by "[f]irst class, registered or certified mail." This makes it clear that the legislature did not intend to allow filing by first-class mail to serve as the date of filing appeals and petitions for review. If that were its intent, it would have included first-class mail in the list provided by ORS 19.260(1)(a)(A). A copy of Chapter 80, 2015 Oregon Laws containing the full text of ORS 19.260 and the 2015 amendments is Appendix 1 of this response (App -1). At the same time, the legislature amended ORS 19.260(2)(a)(B) to allow service of appeals and petitions on parties "by a class of delivery calculated to achieve delivery within three calendar days" but retained first-class mail as an approved means of service in ORS 19.260(2)(a)(A). This confirms the Legislature's understanding that first-class mail is not a class of delivery calculated to achieve delivery within three calendar days. If it were, the listing EXHIBIT C 4 of service by first-class mail in ORS 19.260(2)(a)(A) would be superfluous and would have been removed. Ms. Gould's claim that the interpretation of ORS 19.260(1)(a)(B) provided by the Chapman decision is inconsistent with "the legislature's understanding of what that language meant" is clearly erroneous. Pet Rev 2. The legislative history shows only that the Oregon Legislature intended to amend ORS 19.260 to "allow appellate practitioners to file and serve notice of appeal or initiating document by third -party commercial carriers." Testimony before the Senate Committee on Judiciary by Jordan R. Silk, representing OSB Appellate Practice Section, p. 2, Appendix 2 (App -2). The legislative history contains no evidence to support Petitioner's claim that the legislature intended to enlarge filing by mail to provide that first-class mail would achieve relation back to the date of mailing. 298 Or App at 610. Petitioner's Conduct Petitioner's attorney mailed the petition for review by the Court of Appeals to the Appellate Court Administrator on the last day of the appeal period allowed by ORS 197.850(3)(a). Petitioner's attorney chose to file the petition by certified mail rather than by e -filing. He certified, in his certificate of mailing, that he had mailed the petition by certified mail. He, thereafter, directed his staff to mail the petition certified mail. All of these facts show that Petitioner's attorney understood that a petition for review sent by first-class EXHIBIT 5 mail does not vest jurisdiction in the court until received by the Appellate Court Administrator. ORS 19.260(1)(a). Petitioner's attorney did not review the postal receipts returned to his office by his staff to verify that the petition had been mailed certified mail as he had certified. See ACMS (A171603), July 31, 2019, Petition for Reconsideration at 13-14. Dismissal Proper Under All Opinions in Chapman The Appellate Commissioner of the Court of Appeals properly dismissed Gould's petition because it was mailed first-class mail and was received by the Administrator after the filing deadline. Chief Judge Egan denied reconsideration of the Commissioner's order of dismissal. This action was supported by opinions in Chapman, including the concurring and dissenting opinions. The majority opinion found that when enacted, today's ORS 19.260 "meant that ordinary first-class mail, with filing relating back to mailing was not an option" and that the 2015 Legislature "did not amend subsection (1) itself so as to authorize filing as mailing by first-class mail" as it had done with the rule for service on parties in ORS 19.260(2). 298 Or App at 608, 609. Dismissal of Gould's petition was also supported by the reasoning of the concurring and dissenting opinions in Chapman. All opinions found that first- class mail is a class of mail calculated to achieve delivery within three business days and that Ms. Chapman's petition sent by first-class mail was timely filed because it was mailed on a day when three business days is synonymous with EXHIBIT C three calendar days. Ms. Gould filed her petition on a Friday, a day when three business days is not synonymous with three calendar days and it is clear that the relation -back rule of ORS 19.260(1)(b) does not apply. Gould's Interpretation of Statute is Fundamentally Flawed Ms. Gould's attorney argues that the issue of whether first-class mail is a class of mail calculated to achieve delivery within three days is a question to be answered by the post office receipt provided each time a petition is mailed. This position is clearly wrong. The issue presented by the statute is whether the class of delivery is calculated to achieve delivery in three calendar days; not whether a specific piece of mail will arrive or be estimated to arrive in three days on a postal receipt. ORS 19.260(1)(a)(date of actual receipt not relevant if sent by correct class of delivery). Reasons to Decline Review 1. Gould does not present a significant issue of law and does not raise the same issue regarding the date of mailing presented by Chapman. ORAP 9.07(1). 2. The issue presented by Chapman, not the issue presented by Gould, is the only issue that has arisen more than once (it has arisen twice). ORAP 9.07(2). EXHIBIT C 7 3 The Court of Appeals' decision in Gould does not appear to be wrong. ORAP 9.07(14). It is consistent with all three opinions written by the Chapman court, including the dissent. 4. There is no inconsistency among Court of Appeals' cases. ORAP 9.07(9). 5. The Court of Appeals did not publish a written opinion that addresses the specific facts of the Gould appeal. ORAP 9.07(11). 6. The Court of Appeals did not decide Gould en banc. ORAP 9.07(13). 7. No amicus curiae have appeared. ORAP 9.07(16). 8. Ms. Gould will benefit and CLCC will be harmed by a delay caused solely by the negligence of Petitioner's attorney in filing the petition for review. If Petitioner's attorney had filed the petition by certified mail, as certified to the court by her attorney, or by e -filing, the expedited timelines for review by the Court of Appeals would have begun running on July 12, 2019. The appeal on the merits would likely have been resolved by the Court of Appeals by the end of 2019. DATED this 21st day of October, 2019. Respectfully submitted, Liz Fancher, OSB 812202 Attorney for Respondent CLCC EXHIBIT C App -1 OREGON LAWS 2015 Chap. 80 CHAPTER 80 AN ACT HB 2336 Relating to notices of appeal; creating new pro- visions; amending ORS 19.260; and declaring an emergency. Be It Enacted by the People of the State of Or- egon: SECTION 1. ORS 19.260 is amended to read: 19.260. (1)(a) Filing a notice of appeal in the Court of Appeals or the Supreme Court may be ac- complished by mail or delivery. Regardless of the date of actual receipt by the court to which the appeal is taken, the date of filing [such notice shall be] the notice is the date of mailing[, provided it] or dispatch for delivery, if the notice is: (A) Mailed by registered or certified mail and the party filing the notice has proof from the [post office] United States Postal Service of [such] the mailing date[.]; or (B) Mailed or dispatched via the United States Postal Service or a commercial delivery service by a class of delivery calculated to achieve delivery within three calendar days, and the party filing the notice has proof from the United States Postal Service or the commercial delivery service of the mailing or dispatch date. (b) Proof of the date of mailing [shall] or dis- patch under this subsection must be certified by the party filing the notice and filed thereafter with the court to which the appeal is taken. Any record of mailing or dispatch from the United States Postal Service or the commercial delivery ser- vice showing the date that the party initiated mailing or dispatch is sufficient proof of the date of mailing or dispatch. If the notice is re- ceived by the court on or before the date by which [such] the notice is required to be filed, the party filing the notice is not required to file proof of mailing or dispatch. (2)(a) Service of notice of appeal on a party, transcript coordinator or the trial court administra- tor, or service of a petition for judicial review on a party or administrative agency may be accomplished by: (A) First class, registered or certified mail[.]; or (B) Mail or dispatch for delivery via the United States Postal Service or a commercial delivery service by a class of delivery calculated to achieve delivery within three calendar days. (b) The date of serving [such notice shall be] the notice under this subsection is the date of mailing or dispatch. [Proof of mailing shall be certified by the party filing the notice and filed thereafter with the court to which the appeal is taken.] The party filing the notice must certify the date and method of service. (3) Notwithstanding subsections (1) and (2) of this section, if the party filing a notice of appeal is involuntarily confined in a state or local govern- mental facility, the date of filing of a notice of ap- peal in the Court of Appeals or the Supreme Court, and the date of service under subsection (2) of this section, is the date on which the party delivers the original notice of appeal, and the appropriate num- ber of copies of the notice for service under subsec- tion (2) of this section, to the person or place designated by the facility for handling outgoing mail. (4) Except as otherwise provided by law, the provisions of this section are applicable to petitions for judicial review, cross petitions for judicial review and petitions under the original jurisdiction of the Supreme Court or Court of Appeals. SECTION 2. The amendments to ORS 19.260 by section 1 of this 2015 Act apply only to no- tices of appeal filed on or after the effective date of this 2015 Act. SECTION 3. This 2015 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is de- clared to exist, and this 2015 Act takes effect on its passage. Approved by the Governor May 18, 2015 Filed in the office of Secretary of State May 20, 2015 Effective date May 18, 2015 EXHIBIT C App -2, Page 1 Oregon Testimony before the Senate Committee on Judiciary In support of HB 2336 A On behalf of the OSB Appellate Practice Section April 30, 2015 Chair Prozanski and members of the committee: Bar My name is Jordan R. Silk, and I am an attorney with Schwabe, Williamson & Wyatt in Portland. I am here as a representative of the Appellate Practice section of the Oregon State Bar in support of HB 2336 A. Appellate Practice Section The Appellate Practice section of the Oregon State Bar was originally formed in 1993, and today is made of up of over 350 attorneys who practice appellate litigation in Oregon. Our members represent clients from eastern Oregon to Hood River, to the Portland metro area and out to the coast. The Appellate Practice section's executive committee is comprised of 16 members who represent private clients, public agencies, public corporations, and the Oregon Judicial Department (OJD). The Appellate Practice section worked in conjunction with the Oregon Judicial Department to draft the -2 amendments that were adopted by the House Judiciary Committee and incorporated into the A - Engrossed version of the bill. The Problem The timely filing and service of a notice of appeal is critical because, under Oregon law, a party loses the right to appeal if the notice of appeal is not filed and served within 30 days after entry of judgment. Although federal law provides federal courts with discretion to forgive untimely notices of appeal in some circumstances, the Oregon Court of Appeals and the Oregon Supreme Court lack statutory jurisdiction over untimely appeals, and they lack discretion to excuse untimely filing or service of notices of appeal, no matter the reason. This bill is aimed at reducing possible confusion associated with filing and serving notices of appeal. Currently, parties may rely on the date of mailing for timely filing and service, but only if mailing is done in a certain way. Specifically, under ORS 19.260, parties may not rely on the date of mailing if they file or serve notices of appeal via third -party commercial carriers, even though the Oregon Rules of Appellate Procedure expressly permit the use of third -party commercial carriers to file and serve other appellate documents. See ORAP 1.35(1)(d), (2)(b). As currently written, ORS 19.260(1) provides that a notice of appeal in the Court of Appeals and the Oregon Supreme Court may be filed only through the United State Postal Service, either registered or 16037 SW ! Upper Boones Ferry Road, PO Box 231935, Tigard, Oregon 97281-1935 (503) 620-0222 toll-free in Oregon (800) 452-8260 fax (503) 684-1366 E 171 LBJ C App -2, Page 2 certified mail, to rely on the date of mailing as the filing date. Similarly, under ORS 19.260(2), a notice of appeal may be served only through the United State Postal Service, either registered or certified mail, or first-class mail, for the service date to be the date of mailing. As a result, parties have forever lost the right to appeal simply because they used a third -party commercial for filing and service. This distinction on the type of mailing only exists for initiating documents for an appeal. Currently, many appellate practitioners utilize third -party commercial carriers to mail and deliver documents in the ordinary course of business for pending appeals. For practitioners who do not handle appeals on a frequent basis, this is a trap for the unwary with very serious consequences. The Solution HB 2336 A will amend ORS 19.260 to allow appellate practitioners to file and serve a notice of appeal or initiating document by third -party commercial carriers, just as practitioners are allowed to do with other documents while an appeal is pending. Under ORAP 16.05, "initiating document" is defined as "any document that initiates a case, including but not limited to a notice of appeal; a petition for review; a petition for judicial review; a petition for a writ of mandamus, habeas corpus or quo warranto; and a recommendation for discipline from the Oregon State Bar or the Commission on Judicial Fitness and Disability." Passing HB 2336 A will simplify and clarify the process for filing and serving initiating documents with the Oregon Court of Appeals and the Oregon Supreme Court. HB 2336 A will remove a potential pitfall that would result in the complete loss of appellate rights based on a technical defect. Further, by mandating a consistent filing process regardless of what document is filed, HB 2336 A will allow for increased efficiencies for lawyers and the courts. On behalf of the Appellate Practice Section of the Oregon State Bar, I thank the committee for its consideration and urge the passage of HB 2336 A. I am happy to answer any questions. EXHIBIT CERTIFICATE OF COMPLIANCE WITH BRIEF LENGTH AND TYPE SIZE REQUIREMENTS, AND CERTIFICATES OF FILING AND SERVICE I certify that this brief complies with the word -count limitation of ORAP 9.05(3)(a), which word count is 1645 words. I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and the footnotes. I certify that I filed the foregoing Response to Petition for Review by causing it to be electronically filed with the Appellate Court Administrator on October 21, 2019 through the appellate eFiling system. I further certify that on the same date, I served the attached Response to Petition for Review by causing two copies thereof to be mailed by United States Postal Service certified mail addressed as follows: Wendy M. Margolis Cosgrave Vergeer Kester LLP 900 SW Fifth Avenue, 24th Floor Portland, OR 97204 Jeffrey L. Kleinman 1207 SW Sixth Avenue Portland, OR 97204 David Adam Smith Deschutes County Legal Counsel 1300 NW Wall Street, Suite 205 Bend, OR 97703 I further certify that service of a copy of the foregoing document will be accomplished on the following participants in this case, who are registered users of the appellate courts' eFiling system, by the appellate courts' eFiling system at the participant's email address as recorded this date in the appellate eFiling system on the following parties: David Adam Smith, for Respondent Deschutes County Jeffrey L. Kleinman, for Petitioner Wendy M. Margolis for Petitioner Dated this 21st day of October, 2019. Liz Fancher, OSB #812202 EXHIBIT C L cu 0 Provide general background issues to be decided Board questions o M OJ C E 0 0 BEMS oA 0 (16 CD CI )-) HEARINGS OFFICER DECISION Board will receive testi Applicant appeal issues Appellant appeal issues Matters of ongoing public concern Staff summary Intended to orient the Board to issues 1 0.mckaJ ude FP zoned 04)111 b.0u VI 0 2 O. til CO r u Match long-standing practice 2019 Approval pauses code change 2019 Hearings Officer: Yes "Open Space" allowed in the FP zone ed in the FP zone PUD is a type of subdivision, which are alto Conditional Uses Permitted. 3 pter 18.96. FLO 2015 Hearings Officer: No Statutory construction - ORS 174.010 In the construction of a statute; the office of the judge is simply to ascertain and declare what is, E0000E0 0 (f) 0 0 0 0 0 0 cn 0 has been inserted: and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to alt 0 zone, omitted in FP zone Express in RR ssues -Density and be counted towards PUD housi 0 0 Zone: PUD®s ,®1 dwelling lot per 7®5ac FP Zone: No specification Chapter 18.96. 18.96.110. Dimensional Standards. 0 num lot size acres... . o w 0 w w and be counted towards PUD housi 0 4.1 0 CD N 0 to L. 0 web to the resource use acreage standards? (Goal 3) CL 0 0 0 CU E E 0 to to 0 0 0 VI to the resource use acreage standards? (Goal 3) Chapter 18.96. 18.96.110. Dimensional Standards. Areas which (have/have not) received and exception (Goal 3, 4) Zal coatm eirjORIN .0 eul vi U New 2019 issue Matches long-standing approach 0 :0% 1 resources gu 1 3 0,1 tit 0 4.0 fu WM c u i E ®® Q o a) 5 PUD requirement 0 at CN 0 En u Er - 0 4m CN 0 0.1 MEM ra MEM EMEE al OJ a) Ea: -a In 0 0 BEM Weil/septic separation L) 2 50' setback from 0 647)w OJ PIM 01 4.00 4.1 ra L. o VI ra E d L. tro co 0 0 MESEti Lol apo ra tO OZ VI tOU tan w E SMIA Deni Compatibility review required at time of subdivision 4.14.a R30VIO 6.� cu 42,4 LSI LIE BIC w 12 4:3 to 'al 6. 0 s u 0 1 Six miles west of Terrehonne Adjacent to Deschutes River Approximately 144 acres 1 Diatomite Miring ®a 0 1 Mixed Mining tosi bo -a 3), ra rg To co 46m 'WM ra 4a 0 MEM 980®2006 DOGAMI pe 0 0 MEM Waste Storage - 1974 - 1985 Hazardous/Radioactive Waste ro ILI al Concerns for Cristobalite � 0 0 1 ca 0 L a. c2.a w0Nw Board Approves Rezone exhausted Gravel resourc Rural Residential Zone Environmental Concerns r c 4J eD 0 ET III OD 1. ro 4-0 cu C CU 44 161- 41 0t