2020-281-Order No. 2020-045 Recorded 8/6/2020i
Recorded in Deschutes County CJ2020-281
REVIEWED Nancy Blankenship, County Clerk
Commissioners' Journal 08/06/2020 8:37:51 AM
LEGAL COUNSEL 01ES C III II III
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2020-281
in x
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Regarding a Record Objection in File
Nos. 247-19-000881-SP, 247-20-000279-A, and
247-20-000282-A.
ORDER NO. 2020-045
WHEREAS, consistent with ORS 197.763, Deschutes County Code ("DCC") 22.24.140(D) requires that
"[i]f at the conclusion of the initial hearing the Hearings Body leaves the record open for additional written
evidence or testimony, the record shall be left open for at least 14 additional days, allowing at least the first seven
days for submittal of new written evidence or testimony and at least seven additional days for response to the
evidence received while the record was held open. Written evidence or testimony submitted during the period the
record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or
testimony;" and
WHEREAS, the Board elected to set an initial deadline at 5:00 p.m. on July 1, 2020, for any interested
party to submit "new written evidence or testimony" (the "First Open Record Period"), followed by a second
deadline at 5:00 p.m. on July 8, 2020, for the submission of "evidence or testimony that rebuts previously
submitted evidence or testimony" (the "Second Open Record Period"); and
WHEREAS, consistent with DCC 22.24.130(D), the Board likewise set a deadline at 5:00 p.m. on July
15, 2020, for submittal of final legal argument by applicants Central Land and Cattle LLC ("Central Land") and
Kameron DeLashmutt ("DeLashmutt"); and
WHEREAS, on July 15, 2020, Liz Faucher ("Fancher") as an attorney for the applicants, and DeLashmutt
submitted an objection to the record arguing that "new evidence" and "new argument" provided by Karl Anuta
("Anuta") and Annunziata Gould ("Gould") during the Second Open Record Period "should be disregarded as
improper rebuttal"; and
WHEREAS, on July 27, 2020, Anuta submitted a response to the record objection arguing that, "My
submission was limited to evidence or testimony that rebutted submissions by the applicant on July 1, 2020. Such
a rebuttal was completely appropriate, and was authorized by the County rules"; and
WHEREAS, on July 28, 2020, Anuta submitted a response to the record objection arguing that, "My
submission was limited to evidence or testimony that rebutted submissions by the applicant on July 1, 2020. Such
a rebuttal was completely appropriate, and was authorized by the County rules"; and
WHEREAS, on July 29, 2020, DeLashmutt submitted a response to Anuta's July 27, 2020 submittal
arguing that, "We ask the Board to open the record to accept Anuta's July 27, 2020 response for the limited
purpose of determining whether the claims made in Anuta's July 8, 2020 rebuttal letter are or are not admissible
rebuttal argument. We ask that you accept Anuta's response to the 2018 Neuman letter (page 1 of the July 8, 2020
Anuta letter) and reject Anuta's new argument that a reservoir permit is required for the golf course lakes. We ask
in your decision that you both reject the new argument and address it on the merits;" and
PAGE 1 OF 2- ORDER No. 2020-045
WHEREAS, on July 29, 2020, Fancher stated, "Central Land and Cattle Company, LLC asks that if the
Board reopens the record to consider the Anuta letter of July 27, that it accept Mr. DeLashmutt's letter of July 29
as his final argument."; and
WHEREAS, the Board has given due consideration to the record objections and responses; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
FINDS AND ORDERS as follows:
1. The Board accepts Anuta's July 27, 2020 response into the record for the limited purpose of
determining whether the claims made in Anuta's July 8, 2020 rebuttal letter are or are not admissible
rebuttal argument
2. The Board receives the July 29, 2020 DeLashmutt response as the Applicant's only final argument in
response to this new record submission.
3. The written record remains closed to other submittals at this time.
Dated this of , 2020
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PAGE 2 OF 2- ORDER No. 2020-045
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
PATTI ADAIR, Chair
AlIfTHONeBNViceChair
PHILIP G. HENDERSON, Commissioner
STAFF MEMORANDUM
Date: July 30, 2020
To: Board of County Commissioners
From: Will Groves, Senior Planner
Re: Appeal of Thornburg Golf Course Site Plan - 247-19-000881-SP, 247-20-000279-A, and
247-20-000282-A
The Board of County Commissioners (Board) will receive a staff presentation on August 5, 2020 in
advance of conducting deliberations on August 12, 2020 on appeals of a golf course for the
Thornburg Destination Resort.
I. Background
On December 11, 2019, Kameron DeLashmutt on behalf of Central Land and Cattle Company, LLC
submitted a request for a Site Plan Review (SP) for the Thornburg Phase A golf course. The golf
course includes artificial lakes approved by the Conceptual and Final Master Plans for the
destination resort.
The other Phase A -required development, including the Overnight Lodging Units (OLUs) and
restaurant and meeting rooms, will be proposed in separate site plan applications. They will be
developed or financially assured, as required, prior to the closure of sales, rental or lease of any
residential dwellings or lots.
The resort property is large and comprised of numerous tax lots. The properties subject to this
application are located in the southern region of the destination resort.
The Thornburg Destination Resort has a lengthy and complex history that began in 2005. Each
aspect of the Thornburg Destination Resort project includes decisions by Hearings Officers, the
Board, Land Use Board of Appeals (LUBA), Oregon Court of Appeals, and Oregon Supreme Court.'
The most recent appeal to LUBA (No. 2019-136) is currently awaiting review. LUBA stayed the appeal
pending the outcome of the Supreme Court decision on case S067074.
' See the Land Use History summary on pages 3-5 under the Basic Findings section of the administrative
decision for file 247-19-000881-SP.
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q (541) 388-6575n7 cdd@deschutes.org ( www.deschutes.org/cd
The Planning Division issued an administrative approval without a public hearing on April 1, 2020,
determining the Applicant met the applicable criteria.
The Board conducted a public hearing in this matter on June 17, 2020. The record is presently closed,
following post -hearing open record periods.
II. 150-day Issuance of a Final Local Decision
The 150-day period for issuance of a final local decision is currently September 6, 2020.
III. Appeal
The administrative approval was timely appealed by Central Oregon LandWatch ("LandWatch") and
Annunziata Gould. Staff summarizes the key issues on appeal below.
III. KEY ISSUES
The Board will likely be asked to deliberate and decide on the several matters. This deliberation
summary of party positions is largely composed of direct quotes from record materials. Some
quotes have been edited for brevity, clarity, or issue focus. Staff notes that the Applicant identifies
over 120 points of contention in Applicant's Exhibit 48. Staff focuses, below, on key issues and
interpretative matters, in order to receive Board direction for the drafting of a decision in this case.
1. Jurisdiction to Decide this Application and Dependency Upon the Outcome of Pendine
Appeals
Opponents: Two appeals of county approvals of Phase A-1 governing configuration of the subject
site remain undecided. Until there are final decisions remanding both cases to the county,
jurisdiction will remain in the appellate bodies. Accordingly, the county lacks jurisdiction to act upon
this application and must deny it, at least for the present time.
Applicant: This case isn't dependent on rulings in the tentative plan. The Tentative Plan approval
doesn't bind the Site Plan.
Staff. Staff recommends the Board consider concurring with the Applicant, as this golf course site
plan is not dependent on the appealed Tentative Plan.
2. Compliance with Redmond Fire Requirements
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 2 of 11
Opponents: The fire danger when heavy excavating, grading and construction equipment is used
on the very dry brush of the subject site will be extreme. That is why hydrants are required at this
point, and the requirement must be set out in the conditions of approval. The fire marshal's
remaining requirements must also be incorporated into any conditions of approval for this portion
of the proposed project. It remains unclear whether the area encompassed by this site plan has yet
been annexed to the Redmond Fire District.
Applicant: The entire property has been annexed into the Redmond Fire district (see Applicant's
Exhibit 29: Annexation Documentation). Nothing is required by Redmond Fire until such time that
we have combustible materials on site for buildings (See Applicant's Exhibit 16, Email from Clara
Butler RFD). There is no access needed, nor any water, and certainly not any fire hydrants.
Furthermore, condition #4 specifies that emergency access roads are required prior to Final Plat
Approval or, the issuance of building permits. This site plan has neither. This condition is met
without any further requirements.
The language on page 32 of the staff decision reading: "Moreover, as required under DCC
18.124.060, the Applicant shall provide written confirmation from the Redmond Fire Department
that all applicable fire safety standards are met; including this development's compliance with the
resort's Wildfire/Natural Hazard Protection Plan shall be submitted prior to commencement of
construction, earthmoving, or clearing" should be stricken.
Staff. Staff recommends the Board consider striking the cited language above, as Staffs concern
has been addressed by the cited email from Clara Butler, Redmond Fire, and the subject property
has been wholly annexed to the Fire District.
3. Scope of the Proposal:
Opponents: Opponents raise a number of issues related to the recreational use of the lakes.
Applicant: At this time the golf course is the only recreational amenity on the site plan.
Staff: While "beaches" are shown on the submitted site plans, the Applicant's burden of proof does
not describe or analyze any recreational use of the lake or any supporting facilities. Because such
uses, at minimum, would require demonstration of compliance with DCC 18.124.060, as well as
other site plan review requirements, staff recommends a condition of any approval limiting
recreational use of the site plan area to golfing and specifically precluding other recreational
activities such as watersports and beach access until such time that these uses are approved under
site plan review
4. Collateral Attacks:
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 3 of 11
Issue: LUBA has found2:
***[I]n a variety of contexts both the Court of Appeals and LUBA have held that decisions
rendered in early stages of a multi -stage approval process can be final appealable land use
decisions. In such cases, issues that could have been raised, but were not raised in early
stages, and issues that were raised and resolved adversely to a petitioner in early stage
decisions that were not appealed, generally may not be raised by that petitioner in appeals
of a later stage decision. Carlsen v. City of Portland, 169 Or App 1, 16, 8 P3d 234 (2000); Piltz V.
City of Portland, 41 Or LUBA 461, 467 (2002); Bauer v. City of Portland, 38 Or LUBA 715, 721
(2000); Westlake Homeowners Assoc. v. City of Lake Oswego, 25 Or LUBA 145, 148 (1993);
Hoffman v. City of Lake Oswego, 20 Or LUBA 64, 70-71 (1990); J.P. Finley & Sons v. Washington
County, 19 Or LUBA 263, 270 (1990). In rejecting arguments in appeals of subsequent stage
land use decisions that in reality are a belated challenge to earlier stage land use decision,
we have sometimes referred to those arguments as a "collateral attack" on those earlier
stage land use decisions. Piltz, 41 Or LUBA at 467; Bauer, 38 Or LUBA at 721.2
Applicant and opponents disagree if argument in the present case represents a collateral attack on
prior decisions.
Applicant: Numerous issues raised by opponents on appeal of the site plan were resolved during
the County's review of the FMP and CMP. The County conducted an extensive review of both
documents and found that they achieve compliance with all issues relevant to approval of those
plans. Both of those proceedings were very extensive and considered a wide range of legal
argument, materials, plans and impacts.
The Applicant lists the issues they believe precluded from further argument in Exhibit 46.
Kleinman: Appellant and COLW have set out valid "attacks" upon the Applicant's assertions of
compliance with the approval standards herein. There is nothing impermissible or collateral about
those challenges. Moreover, they are firmly sounded in the evidence and have not been effectively
rebutted by the Applicant.
As we have consistently pointed out, the golf course and lakes, and related water consumption for
construction and for use and maintenance going forward, have not been approved in an earlier
proceeding. The Applicant chose to chop Phase A into smaller, bite -size pieces, and must live with
the result. This is a fresh new site plan application. Opponents' challenges are not subject to the
case law cited by the Applicant with respect to "improper collateral attack." Rather, the issues we
have raised are properly before you and must be decided on the merits.
Staff: Staff recommends the Board consider determining that the issues the Applicant identifies in
Exhibit 46 are issues that could have been raised, but were not raised in early stages, and/or issues
that were raised and resolved adversely to a petitioner in early stage decisions that were not
appealed. These issues may not be raised in the appeal of this later stage decision.
2 Widgi Creek Homeowners Association v. Deschutes County, 71 Or LUBA 821 (2015)
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 4 of 11
4. Conditions of Approval of FMP Misstated by Appealed Decision:
Applicant: The Administrative Decision appealed by COLW and Gould inaccurately lists the
conditions of approval of the FMP. A number of the CM conditions were found by the FMP decision
to be "satisfied." Therefore, those CMP conditions were not made conditions of approval of the FMP.
These are CMP Conditions 3, 8, 9, 11, 13, 14.A, 14.13, 15, 24, 30, and 37. Also, Condition 28 was
replaced by Condition 38 and 39 and should not have been listed as a relevant approval criterion
for review of the golf course application.
Staff: Staff concurs and recommends the Board consider amending this as part of the decision.
Staff is unaware of any party contesting this correction.
5. Parking Required for a Golf Course
Applicant: DCC 18.116.030, Off Street Parking and Loading, by its plain terms, does not require the
Applicant to provide parking spaces for development of its golf course. It says:
"(O]ff-street parking spaces shall be provided at the time a new building is hereafter
erected or enlarged or the use of building existing on the effective date of DCC Title 18 is
changed."
The Applicant is not proposing to construct a new building. It is not asking to enlarge a building or
change its use. Therefore, off-street parking spaces are not required. The condition of approval
requiring the Applicant to obtain approval of off-street parking (Condition E.), therefore, is not
supported by the applicable law and should be removed. Likewise, bicycle parking spaces are not
required. DCC 116.031 requires bicycle parking only for "uses that require off-street motor vehicle
parking."
Opponents: This application for a site plan for a golf course and lakes is incomplete where it fails
to address the site plan criteria for the required parking, walking paths, lighting and
structures/facilities for the golf course and lakes. A mere condition of approval deferral to allow
addressing these other essential components at a later date is not legally sufficient. The site plan
application has to complete so all elements under the code that must be satisfied for a site plan for
a particular use can be assessed.
Staff. Staff recommends the Board consider not adopting the Applicant's interpretation of DCC
18.116.030. There are many circumstances e.g. (parks, other outdoor activities, food carts) where a
use will attract a significant number of new vehicles without enlarging or changing the use of a
building. Staff recommends the Board interpret this criterion to specify at what time parking must
be provided for new buildings, but not to preclude parking requirements for uses that do not involve
buildings.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 5 of 11
In addition (or in the alternative), staff recommends the Board consider finding that permitting a
use through site plan review that will necessarily be attended by the public in cars but does not
provide for parking would likely not provide a "safe environment" (DCC 18.124.060(C), and would
not provide for "separations between pedestrians and moving and parked vehicles" (DCC
18.124.060(E).
Since the Applicant has proposed to provide parking for the golf course as part of site plan review
for the clubhouse and other golf facilities to reviewed under future site plan(s), staff recommends
the Board consider requiring a condition of approval precluding golfing or other recreational use of
the golf course and lakes until parking has been reviewed, and approved through site plan review,
as well as constructed.
This would allow the Board, in the decision, to make findings that the golf course, as conditioned, is
a use that requires no parking or bicycle parking at this time and does not need findings of
compliance with DCC 18.116.030 and .031. The Board should also consider finding that, in the
alternative, to the extent that the present decision defers determination of compliance with parking
standards to a later proceeding, a later site plan review will be required and will provide a full public
right to participate in the subsequent approval stage.
6. Documents Filed by pponents during Rebuttal Period
Applicant: Proper rebuttal responds to information filed during the first post -hearing comment
period. Most of the documents filed by opponents during the rebuttal period contain new evidence
rather than rebuttal evidence. The Applicant, therefore, asks the Board to expressly decline to
include new evidence that is not rebuttal as a part of the record of this appeal. Mr. DeLashmutt has
compiled a list of new evidence that is not proper rebuttal that is attached as Exhibit 47.
The DCC 22.24.140(D), Continuances or Record Extensions, provides:
D. Leaving record open. If at the conclusion of the initial hearing the Hearings Body
leaves the record open for additional evidence or testimony, the record shall be left
open for at least 14 additional days, allowing at least the first seven days for
submittal of new written evidence or testimony and at least seven additional days
for response to the evidence received while the record was held open. Written
evidence or testimony submitted during the period the record is held open shall be
limited to evidence or testimony that rebuts submitted evidence or testimony.
Opponents: Opponents did not respond to this issue, as it was raised in the Applicant's final
argument.
Staff: Staff is currently working with parties on this issue and will provide an updated discussion at
the Board's August 5, 2020 work session.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 6 of 11
7. Americans with Disability Act ("ADA") and compliance with DCC 18.124.060(D)
Issue: DCC 18.124.060(D) requires:
D. When appropriate, the site plan shall provide for the special needs of disabled
persons, such as ramps for wheelchairs and Braille signs.
Opponents: This goal 8 destination resort is open to the public and it's recreational assets must
meet the ADA criteria not just for golf cart pathway width and surfaces but golf cart access for
barrier free play on the Tees, Fairways, Greens together with all cart paths, shelters and parking
areas. Therefore approximate location of golf holes is insufficient to show today that this Site Plan
meets such barrier free access to this public recreation. The beach areas at the large lake are not
shown to meet ADA boating launch needs. Furthermore no ADA route is shown to the proposed
lakes.
Applicant: Golf cart passages don't need to be paved within the golf course. Applicants Exhibit 17,
pg. 15, the Guidelines for ADA compliance by the US Access Board state: While golf cart passages
must be usable by golf cars, they don't need to have a prepared surface, and may be part of a golf
car path. That said, the Thornburgh golf course will be ADA compliant.
The site plan anticipates no boat ramps, boat pilings, or boat access. While the US Access Board has
no guidelines for lakes there are guidelines for piers or platforms. That said, accessible routes, or
suitable alternate passages to lakes recreation offerings will be provided in accordance with US
Access Board guidelines. In the event that any form of pier or platform is installed it will be done in
such a way to comply with the US Access Board guidelines for ADA access, turning, rails, etc..., for
that type of installation.
Staff: Staff has previously recommended a condition of approval precluding recreational use of the
lakes/beaches until these uses are fully reviewed through a later site plan approval. This condition
would remove the necessity of resolving the "the special needs of disabled persons" for these
facilities at this time.
Staff recommends the Board consider finding that Applicant's Exhibit 17, pg. 15, the Guidelines for
ADA compliance by the US Access Board, outlines the requirements for the golf course to
accommodate "the special needs of disabled persons". Specifically, staff recommends the Board
consider a condition of approval requiring compliance with Guidelines for ADA compliance by the
US Access Board, as elaborated by the "Accessible Golf Courses" information provided on pages 12-
21 of Applicant's Exhibit 17.
8. The submitted plan does not show how vegetation in adjacent undeveloped areas will
be protected and retained This must be proposed and reviewed as part of this
application.
Opponents: The Applicant in response to this requirement identifies nothing that will be preserved
and merely asserts having "a minimalist philosophy" and "a light touch." More is required of a site
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 7 of 11
plan than that or else this site plan requirement is meaningless. There must be a showing of what
is to be preserved and how. If "[p]reserved trees and shrubs shall be protected," we need to know
what are the "preserved" trees and shrubs in the first place.
Applicant: The Applicant provides substantial details in Applicant's Exhibit 46 how this issue was
resolved by the far broader standards of the CMP and FMP, including the WMP/FWMP, the Natural
Characteristics Report (Applicant's Exhibit 42), the Wildlife and Habitat Report (Applicant's Exhibit
43), and the Open Space Management Plan (Applicant's Exhibit 44). Extensive planning and analysis
was completed to comply with the CMP/FMP that meets this standard. Further the Applicant has
provided evidence that it will use a light touch to build the golf course that will preserve the
landscape and topography to the greatest extent possible. The site plan itself shows the fairway
lines, which represent the area that typically would be cleared, completely. The materials have
stated that, while we may clear everything within those corridors on some fairways, that we will use
extreme efforts to leave as much vegetation within those corridors as possible. The areas outside
of the golf fairway corridors is covered by condition #34 which deals with the restoration of
disturbed native vegetation. The WMP (Applicant's Exhibit 38 and Ex. P) deals with the timing of
when restoration efforts take place.
Staff. Staff recommends the Board consider replacing the finding in the administrative approval to
match the Applicant's argument above.
10. Water Rights and Water Issues
Issue: FMP condition #10 requires:
Applicant shall provide, at the time of tentative plat/site plan review for each individual
phase of the resort development, updated documentation for the state water right permit
and an accounting of the full amount of mitigation, as required under the water right, for
that individual phase.
Parties disagree if the Applicant has provided the updated documentation and accounting.
Applicant: Applicant's Exhibit AA, the Mitigation Debit Table, shows the mitigation required for this
phase of development as required by Condition 10. In the TP decision, Hearing Officer Olsen found
Condition 10 was primarily an informational requirement and requirement for an accounting of the
amount of mitigation needed under the water right. The BOCC in the TP remand also noted that
mitigation would be required before pumping water for the phase. Staff noted that Applicant's
Exhibit AA, the Mitigation Debit Table, which detailed the amount of mitigation needed for this site
plan, was consistent with the BOCC directions. Staff was correct in finding compliance with
Condition #10.
Opponents: Although the Resort holds a permit, which has not yet been cancelled, that permit has
expired and no extension of that permit currently exists. And the Applicant has admitted that an
extension is needed, before it can use the permit. In short, there is currently insufficient water
File Nos'. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 8 of 11
currently available to the Resort for the proposed use. There is certainly not enough to do what the
application proposes.
Opponents also challenge the water accounting for neglecting additional water demands, such as
reservoir evaporation, construction dust suppression, and irrigation demands likely in the high
desert.
Staff. Staff recommends that the Board consider finding that the Applicant has provided the
updated documentation and accounting.
III. NEXT STEPS
The Board of County Commissioners (Board) will receive a staff presentation on August 5, 2020 in
advance of conducting deliberations on August 12, 2020 on appeals of the Thornburg golf course.
DESCHUTES COUNTY PLANNING DIVISION
Will Groves, Senior Planner
Attachments:
Ref. No.
2020-07-15 - Final Argument Liz Fancher with DeLashmutt Ex. 46 and 47.pdf
168
2020-07-15 - DELASHMUTT FINAL ARGUMENTS.pdf
167
2020-07-15 - DELASHMUTT Ex. 48 Comment Chart Final v13.pdf
166
2020-07-15 - Applicant Response to Anuta Rebuttal
165
2020-07-08 S Dorsey Comments
164
2020-07-08 N Gould Testimony
163
2020-07-08 M Stout Comments
162
2020-07-08 K DeLashmutt Comments 2
161
2020-07-08 K DeLashmutt Comments 1
160
2020-07-08 K Anuta Comments
159
2020-07-08 J Neuman Comments
158
2020-07-08 J Kleinman Comments 6
157
2020-07-08 J Kleinman Comments 5
156
2020-07-08 J Kleinman Comments 4
155
2020-07-08 J Kleinman Comments 3
154
2020-07-08 J Kleinman Comments 2
153
2020-07-08 J Kleinman Comments 1
152
2020-07-08 D Barber Comments
151
2020-07-08 COLW (C Macbeth) Comment
150
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 9 of 11
2020-07-08 C Morton Comments
149
2020-07-07 K DeLashmutt Testimony 1
148
2020-07-07 A Williams Memo to File
147
2020-07-01 Y Lind Comments 3
146
2020-07-01 Y Lind Comments 2
145
2020-07-01 Y Lind Comments
144
2020-07-01 T Bishop Testimony
143
2020-07-01 S Manis Comments
142
2020-07-01 N Gould testimony 3
141
2020-07-01 N Gould testimony 2
140
2020-07-01 N Gould testimony 1
139
2020-07-01 M Saslow Comments
138
2020-07-01 L Dorsey Comments 2
137
2020-07-01 L Dorsey Comments
136
2020-07-01 K DeLashmutt Comments 6
135
2020-07-01 K DeLashmutt Comments 5
134
2020-07-01 K DeLashmutt Comments 4
133
2020-07-01 K DeLashmutt Comments 3
132
2020-07-01 K DeLashmutt Comments 2
131
2020-07-01 K DeLashmutt Comments 1
130
2020-07-01 K Anuta Comments
129
2020-07-01 J Kleinman Testimony 2
128
2020-07-01 J Kleinman Testimony
127
2020-07-01 J Guild Comments w attachments
126
2020-07-01 H Lonsdale Comments
125
2020-07-01 G Burton Comments
124
2020-07-01 D Stout Testimony
123
2020-07-01 D Arnold Testimony
122
2020-07-01 C MacBeth (COLW) Comments
121
2020-06-30 Y Lind Comments
120
2020-06-30 COLW Testimony
119
2020-06-28 P Geiser Comments
118
2020-06-28 N Gould comments
117
2020-06-28 L Bakewell Comments
116
2020-06-22 D Arnold Comments
115
2020-06-18 E Hartwig Comments
114
2020-06-18 W Groves response to E Hartwig RE party of record
113
2020-06-17 Zoom Hearing Screenshot testimony
112
2020-06-17 W Groves response to R Schultz RE noticing
111
2020-06-17 N Engbretson Comments
110
2020-06-17 M Saslow Comments
109
2020-06-17 Lipscom email with Attachements
108
2020-06-17J Kleinman email RE Order 8-9-19
107
2020-06-17 J Kleinman email RE Notice of Oral Argument
106
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 10 of 11
2020-06-17 J Kleinman email RE N Gould memo
105
2020-06-17 J Kleinman email RE COA opening brief
104
2020-06-17 COLW Comments
103
2020-06-17 BoCC Hearing Exhibit List
102
2020-06-17 BoCC Hearing Exhibit Al - K DeLashmutt - Table of Issues
101
2020-06-17 BoCC Hearing Exhibit A2 - K DeLashmutt - PPT
100
2020-06-17 BoCC Hearing Exhibit A3 - K DeLashmutt - Introduction
99
2020-06-17 BoCC Hearing Exhibit A4 - K DeLashmutt - Collateral Attacks
98
2020-06-17 BoCC Hearing Exhibit A5 - K DeLashmutt - Land & Notice
97
2020-06-17 BoCC Hearing Exhibit A6 - K DeLashmutt - Extent. of Wtr Rights Permit
96
2020-06-17 BoCC Hearing Exhibit A7 - K DeLashmutt - Other Claims
95
2020-06-17 BoCC Hearing Exhibit B - A Thornburgh - testimony
94
2020-06-17 BoCC Hearing Exhibit C - S Dorsey - Testimony
93
2020-06-17 BoCC Hearing Exhibit D - N Gould - Testimony
92
2020-06-17 BoCC Hearing Exhibit E1 - T Bishop - Cover letter
91
2020-06-17 BoCC Hearing Exhibit E2 - T Bishop - 2019 Eagle Crest Fire
90
2020-06-17 BoCC Hearing Exhibit E3 - T Bishop - 2018 Eagle Crest Fire
89
2020-06-17 BoCC Hearing Exhibit E4 - T Bishop - Greater RDM Wildfire Protect. Plan
88
2020-06-17 BoCC Hearing Exhibit F - Testimony Sign in Sheets
87
2020-06-17 Staff Memo
86
2020-06-16 L Dorsey Comment
85
2020-06-16 K Cody Comments
84
2020-06-16 K Anuta Email RE Summary of Water Facts
83
2020-06-10 DeLashmutt email RE Clock Extension
82
2020-06-10 Staff Power point for Pre -Hearing Worksession
81
2020-06-07 N Gould Comments
80
Staff notes that Board index items beginning at 80 have been renumbered to match submission
order. Former item #80 is now #81 and former item #81 is now #82.
File Nos. 247-19-000405-CU, 406-TP, 407-SMA, 741-A, 757-A Page 11 of 11
William Groves
From:
William Groves
Sent:
Thursday, July 30, 2020 11:04 AM
To:
William Groves
Subject:
FW: Thornburgh - Request to Reopen
Sent: Wednesday, July 29, 2020 4:15 PM
To: Kameron DeLashmutt <kameron@bendcable.com>; Adam Smith <Adam.Smith@deschutes.org>
Cc: William Groves <William.Groves@deschutes.org>
Subject: RE: Thornburgh - Request to Reopen
[EXTERNAL EMAIL]
Adam:
Central Land and Cattle Company, LLC asks that if the Board reopens the record to consider the Anuta letter of July 27,
that it accept Mr. DeLashmutt's letter of July 29 as his final argument.
Thank you,
Liz Fancher
Liz Fancher, Attorney
644 NW Broadway Street
Bend, OR 97703
541-385-3067 (telephone)
CONFIDENTIALITY NOTICE: The information contained in this electronic mail transmission is confidential. This information is
intended for the exclusive use of the addressee(s). If you are not the intended recipient, please notify the sender immediately
by return email and you are hereby notified that any use, disclosure, dissemination, distribution (other than to the addressee(s)),
copying or taking of any action because of this information is strictly prohibited.
Central Land and Cattle, LLC
July 29, 2020
APPLICANTS RESPONSE TO KARL ANUTA RESPONSE.
On July 27, 2020 Karl Anuta (Anuta), counsel for Nunzie Gould (Gould) filed a response to the
applicants Motion to Strike portions of Anuta's rebuttal testimony filed on behalf of Gould. In
that Anuta claims his rebuttal was completely appropriate and authorized by County rules. Both
of those statements are false for the reasons I will detail below.
We ask the Board to open the record to accept Anuta's July 27, 2020 response for the limited
purpose of determining whether the claims made in Anuta's July 8, 2020 rebuttal letter are or are
not admissible rebuttal argument. We ask that you accept Anuta's response to the 2018 Neuman
letter (page I of the July 8, 2020 Anuta letter) and reject Anuta's new argument that a reservoir
permit is required for the golf course lakes. We ask in your decision that you both reject the new
argument and address it on the merits. We believe the argument is irrelevant because proof of a
reservoir permit is not required by the FMP or relevant approval criteria.
In Anuta's July 8, 2020 rebuttal he purported to respond to the following materials submitted by
Applicant:
1. Applicant's rebuttal Exhibit 18: a letter from Jan Neuman written in 2018,
2. Applicant's rebuttal Exhibit 15: a letter from Liz Fancher, dated June 17, 2020,
including exhibits, and;
3. Applicant's Golf Course and Lake Site plan, pages Anuta attached as Exhibit 7.
Of the materials Anuta cites, Exhibits 15 and 18 were submitted by the applicant during the post
hearing period whereas the site plan Anuta refers to in Exhibit 7 was submitted at part of the
application.
On July 15, 2020 Ms. Fancher requested in final argument that a part of Anuta's rebuttal
regarding reservoir permits be stricken because this is a new legal argument that is not proper
rebuttal. While Anuta referred to and made arguments about Exhibit 18: The Neuman letter
from 2018, Ms. Fancher didn't ask those portions to be stricken.' Instead Ms. Fancher focused
her objection to Anuta's July 8, 2020 rebuttal specifically on sections related to Exhibit 15, her
letter, and the site plan. In her letter she noted Anuta's comments raised an entirely new legal
issue that was not allowed and that it also was a collateral attack on elements resolved in the
CMP/FMP. More troubling is the fact that Anuta made false statements in order to justify the
acceptance of his improper rebuttal.
' In this case Anuta has argued Gould's contested case is strong, so applicant submitted Exhibit 18 to show how
frivolous elements of Gould's arguments were, and how they were previously resolved in the land use process.
FINAL ARGUMENTS -Thornburgh Golf Course and Lake Site Plan #247-19-000881-sp.
Specifically, Anuta stated that; "in the applicant's rebuttal Exhibit #15 (letter from Attorney
Fancher) the applicant's counsel specifically notes that the project will include a ... recreational
lake, [and] a lake/boating clubhouse...". In response to this Ms. Fancher submitted as part of
applicant's final legal argument the following:
"This claim is false. I said nothing about water rights or water uses. I wrote a letter that
addresses lot of record issues only. I specifically noted nothing about recreational lakes or
a lake/boating clubhouse".
Ms. Fancher is being very gracious and kind in stating that was false. It was a blatant lie and was
done to justify getting his improper rebuttal accepted. In addition, Anuta goes on to state that
"the Fancher letter expressly acknowledges, those reservoirs are proposed not just for irrigation
use, but also for aesthetics and recreation...." Ms. Fancher made no such claim. Anuta's
statement is another blatant lie, made to skirt the rules and get his improper rebuttal in the record.
Now after having his lies exposed, Anuta changes his claims in his recent letter. Now, he
acknowledges that the language he quoted in his rebuttal was not from Ms. Fancher, but instead
was a portion of the BOCC CMP approval from 2005.2
All of this subterfuge is to raise a new issue, one that has no place in this proceeding, and
certainly not at this time. Anuta refers repeatedly to the Site Plan, which was part of the original
application. The time to raise issues about that was prior to or at the hearing. Or in the post
hearing period. Not in rebuttal. He raises claims about recreational uses needing some new
permit. The time to do that was in the CMP when the CMP plans addressed the recreational use
issue. In fact, the language Anuta improperly attributes to Ms. Fancher about lakes was from the
BOCC's decision approving the CMP. The issue is resolved.
In his latest letter Anuta urges you to think seriously about why I want his statements removed.
Anuta would have you believe I am concerned his legal argument has merit. It does not. I am
merely asking that opponents play by the rules and not be allowed to relitigate issues resolved by
the CMP and FMP approvals 5, 10, and 15 years ago. I am tired of having Ms. Gould and her
attorneys using the land use process to delay our progress in order to destroy our business.
This is simple, Anuta new legal argument regarding OWRD reservoir permits is improper
rebuttal, are collateral attacks on the CMP and FMP, and have nothing to do with the site plan
criteria for approval. I will again ask the Board to strike those portions of Anuta's rebuttal that
Ms. Fancher has highlighted as improper.
Sincerely,
Kameron DeLashmutt
2 Ms. Fancher included 4 pages of the Boards decision, highlighting the section relevant to the lot
of record argument she was making on page 24.
FINAL ARGUMENTS -Thornburgh Golf Course and Lake Site Plan #247-19-000881-sp.
William Groves
From:
Sent:
To:
Cc:
Subject:
[EXTERNAL EMAIL]
Karl Anuta <kga@integra.net>
Tuesday, July 28, 2020 4:31 PM
William Groves; Adam Smith
'Nunzie'; kleinmanjl@aol.com; liz@lizfancher.com
RE: Thornburg - Request to Reopen
On behalf of Ms. Gould, I request that the Record be reopened for the limited purpose of accepting my July 27, 2020
Response to the Applicant's Motion to Strike and any Reply argument on that issue that the applicant wishes to make.
Karl G. Anuta
503-827-0320
From: Karl Anuta <kga@integra.net>
Sent: Monday, July 27, 2020 9:55 AM
To:'William Groves' <William.Groves@deschutes.org>
Cc:'Nunzie' <nunzie@pacifier.com>; kleinmanjl@aol.com
Subject: RE: Thornburg - Gould Response to Motion to Strike
Will — Here is a Response to the applicants request/motion that a portion of my July 8, 2020 testimony be
stricken.
Karl G. Anuta
Law Office of Karl G. Anuta, P.C.
735 S.W. First Avenue
Strowbridge Bldg, Second Floor
Portland, Oregon 97204
503-827-0320 (phone)
503-228-6551 (fax)
https://sites.google.com/site/lawofficeofkarlanuta/
KARL G. ANUTA
LAW OFFICE OF KARL G. ANUTA, P.C.
735 SW FIRST AVENUE, 2"n FLOOR
TRIAL ATTORNEY PORTLAND, OREGON 97204 E-MAIL
LICENSED IN (503) 827-0320 KGA@INTEGRA.NET
OREGON & WASHINGTON FACSIMILE (503) 228-6551
July 27, 2020
RESPONSE TO APPLICANT MOTION TO STRIKE
In her July 15, 2020 Closing Argument, the Counsel for the applicant asked the
Board to reject a portion of my July 8, 2020 Rebuttal Testimony on Water filed on behalf
of Ms. Gould. That Motion to Strike or request to reject should be denied.
My submission was limited to evidence or testimony that rebuted submissions by
the applicant on July 1, 2020. Such a rebuttal was completely appropriate, and was
authorized by the County rules.
On July 1, 2020, the applicant submitted as Exhibit #18 a letter from attorney
Janet Newman dated September 25, 2018. That letter discussed the alleged validity of
the applicant's groundwater permit and why Ms. Gould's Protest of that permit would
allegedly not be successful. Appli. Ex. #18, pp.2-26 (PDF pp.51-75).
I was entitled to, and did respond to that Exhibit by pointing out why the
statements in that now outdated letter were no longer accurate representations about
the status of water availability under that permit, and how there was in fact not water
available under that groundwater permit for the project proposed in the Site Plan that is
now pending before you.' Had the applicant not wanted to open the door to such a
rebuttal, they should not have submitted an outdated letter on those points as an
Exhibit.
Similarly, in the same July 1 email the applicant submitted as Exhibit #15 a letter
from attorney Liz Fancher dated June 17, 2020. That letter was mostly about "Lots of
record" issues, but in the letter Ms. Fancher referenced the fact that the Site Plan
before you - for which the applicant seeks approval - includes a "golf course and lake
application." Appli. Ex. #15, p.1 (PDF p.2)(emphasis added). Also attached to the Ex.
#15 letter, and referenced in it, was a decision of this Board dated December 20, 2005,
which referenced the Resort now up for Site Plan approval as potentially including "a
recreational lake, [and] a lake/boating clubhouse". Appli. Ex. #15, p.23 (PDF p.24).
I was entitled to, and did respond to the statements in Ex. #15, and to the
' 1 would be happy to submit and explanation of how my testimony was not a "collateral attack" on
previous approvals, if that would be helpful to the Commissioners.
Page 1 of 2
attachments to Ex. #15, by pointing out that use of water for such a recreational lake
purpose was not lawful - as no permits to fill such lakes existed - and that there was not
water lawfully available for that proposed use which is in the Site Plan that is now
pending before you. Had the applicant not wanted to open the door to such a rebuttal,
they should not have submitted a letter and a decision that referenced those issues as
an Exhibit.
Since my submission of responsive evidence and argument was direly a
response to Exhibits submitted by the Applicant, none of my statement should be
rejected or stricken.2
Respectfully Submitted,
/s/ 4-11 Agra
Karl G. Anuta
2 However, the Commissioners should - when evaluating the request to reject - think seriously
about why the applicant is so desperate to remove my statements from the Record before you. I suggest
is it because they know those statements are accurate and that they show that some of the Site Plan
Approval Criteria related to water were not met.
Page 2 of 2
vT E S Co
o 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 Wednesday Meeting of August 5, 2020
DATE: July 30, 2020
FROM: William Groves, Community Development, 541-388-6518
TITLE OF AGENDA ITEM:
Consideration of Signature of Order 2020-045 - Reopening the Record of Thornburg Golf
Course Site Plan
RECOMMENDATION & ACTION REQUESTED:
Staff recommends the Board consider signature of Order 2020-045.
BACKGROUND AND POLICY IMPLICATIONS:
On December 11, 2019, Kameron DeLashmutt on behalf of Central Land and Cattle Company, LLC
submitted a request for a Site Plan Review (SP) for the Thornburg Phase A golf course. The golf
course includes artificial lakes approved by the Conceptual and Final Master Plans for the
destination resort. The Board conducted a public hearing in this matter on June 17, 2020. The
record is presently closed, following post -hearing open record periods. Staff recommends the
Board consider signature of Order 2020-045 which, as drafted, would:
1. Accept Anuta's July 27, 2020 response into the record for the limited purpose of
determining whether the claims made in Anuta's July 8, 2020 rebuttal letter are or
are not admissible rebuttal argument
2. Receive the July 29, 2020 DeLashmutt response as the Applicant's only final
argument in response to this new record submission.
3. Confirms that the written record remains closed to other submittals at this time.
FISCAL IMPLICATIONS: None
ATTENDANCE: Will Groves, Legal