2020-336-Minutes for Meeting August 26,2020 Recorded 9/16/2020�wTES CMG
2{ BOARD OF
COMMISSIONERS Recorded in Deschutes County C J2020_336
Nancy Blankenship, County Clerk
Commissioners'Journal 09/16/2020 7:51:21 AM
1300 NW Wall Street, Bend, Oregon
(541) 388-6570 �,wrfs�or2 IIIIIIIIIIIIIIIIIIIIIIII IN III IIIII III
2020-336
10:00 AM
Wednesday, August st 26, 2020 BARNES & SAWYER ROOMS
VIRTUAL MEETING PLATFORM
Present were Commissioners Patti Adair, Anthony DeBone, and Phil Henderson. Also present were Erik
Kropp, Deputy County Administrator; David Doyle, County Counsel (via Zoom conference call); and
Sharon Keith, Board Executive Assistant (via Zoom conference call). Attendance was limited due to
Governor's Virus Orders.
This meeting was audio and video recorded and can be accessed at the Deschutes County
Meeting Portal website http://deschutescountyor.igm2.com/Citizens/Default.aspx
CALL TO ORDER: Chair Adair called the meeting to order at 10:00 a.m.
PLEDGE OF ALLEGIANCE:
CITIZEN INPUT: None presented
CONSENT AGENDA: Before the Board was Consideration of Approval of the
Consent Agenda.
DEBONE: Move approval of Consent Agenda
HENDERSON: Second
BOCC MEETING AUGUST 26, 2020 PAGE 1 OF 8
VOTE: DEBONE: Yes
HENDERSON: Yes
ADAIR: Chair votes yes. Motion Carried
1. Consideration of Board Signature of Resolution No. 2020-025, Initiating the
Vacation of Portions of D.H. Yeoman Road and Cole Road
2. Consideration of Board Signature of Resolution No. 2020-047, to Increase FTE
and Transfer Appropriations in the FY 2020-21 Budget
3. Consideration of Board Signature of Resolution No. 2020-054, to Transfer
Appropriations and Reduce FTEs in the Deschutes County FY 2020-21 Budget
4. Consideration of Board Signature of Order No. 2020-034, Vacating Portions
of D.H. Yeoman Road and Cole Road
5. Consideration of Board Signature of Document No. 2020-471, Agreement
with Youth Villages for Crisis and Transition Services
6. Consideration of Board Signature of Document No. 2020-575, an
Intergovernmental Agreement with the Oregon Department of
Transportation for Right of Way Services for US 20 at Ward/Hamby
Intersection Improvement Project
7. Consideration of Board Signature to Reappoint Charla DeHate to the
Deschutes County Public Health Advisory Board
8. Consideration of Board Signature to Reappoint Steve Strang to the
Deschutes County Public Health Advisory Board
9. Consideration of Board Signature to Reappoint Tami Pike to the Deschutes
County Public Health Advisory Board
10.Approval of Minutes of the August 17, 2020 BOCC Meeting
ACTION ITEMS:
CONVENE AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT
• Consideration of Board Signature to thank Ron Schmid of the Sunriver
Service District Managing Board for this service on the Board.
• Consideration of Board Signature to Appoint Robert Foster to the
Sunriver Service District Managing Board
DEBONE: Move approval of Board Signature
HENDERSON: Second
BOCC MEETING AUGUST 26, 2020 PAGE 2 OF 8
VOTE: DEBONE:
HENDERSON:
ADAI R:
Yes
Yes
Chair votes yes. Motion
RECONVENE AS THE GOVERNING BODY OF DESCHUTES COUNTY
11.Second Reading by Title Only of Ordinance No. 2020-013 - Lower Bridge
Mine Rezone, Westside
Community Development Department Planner Will Groves (via Zoom
conference call) presented the Ordinance for the second reading.
HENDERSON: Move second reading by title only of Ordinance No. 2020-013
DEBONE: Second
VOTE: HENDERSON:
DEBONE:
ADAI R:
Yes
Yes
Chair votes yes. Motion Carried
Commissioner Adair read the Ordinance by title only into the record.
DEBONE: Move adoption of Ordinance No. 2020-013
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
ADAIR: Chair votes yes. Motion Carried
12.Consideration of Signature of Board Order No. 2020-037 to Name a
Public Right of Way as Quail Farm Road
Senior Transportation Planner Peter Russell (via Zoom conference call)
presented the Order for consideration.
BOCC MEETING AUGUST 26, 2020 PAGE 3 OF 8
DEBONE: Move adoption of Order No. 2020-037
HENDERSON: Second
VOTE: DEBONE:
HENDERSON:
ADAI R:
Yes
Yes
Chair votes yes. Motion Carried
13.Triennial Title VI Policy Update
Communication Director Whitney Hale presented the policy for consideration
and reported on the updates in accordance with the Oregon Department of
Transportation guidelines. Commissioner Henderson asked for further
details on the complaint process listed in the policy. Recommendation made
for the population statistics to be updated. Commissioner DeBone read the
statement of policy into the record.
HENDERSON: Move approval as amended for population update
DEBONE: Second
VOTE: HENDERSON:
14.COVID19 Update
Yes
Yes
Chair votes yes. Motion Carried
Health Services Dr. George Conway (via Zoom conference call) started the
discussion with smoke hazards and air quality from both Oregon fires and
California fires. Relative to COVID19, Dr. Conway reported on the long-term
care facilities stating they are now closed cases with no additional positive
cases in the past 14 days. Discussion held on mortality rates.
Public Health Director Nahad Sadr-Azodi and Dr. Richard Fawcett (via Zoom
conference call) presented the update on COVID19. Presentation attached to
the record.
BOCC MEETING AUGUST 26, 2020 PAGE 4 OF 8
CARES Act Funding Opportunities: Continued discussion held on the
designation of options for reimbursement for COVID19 expenses.
Chief Financial Officer Greg Munn presented the revised options for
consideration. Further revisions were made. Commissioner Adair spoke
with a FEMA consultant regarding additional assistance and they will
reimburse COVID19 expenses at 75%. Mr. Munn noted concern the FEMA
reimbursement process is lengthy. Mr. Munn reported the Chamber of
Commerce is not able to provide services for business support grants and
recommended removing the item 4 under column C for Economic
Assistance.
Regarding equipment orders, Commissioner Adair inquired if the
backordered ventilators could be cancelled if they are not needed. Dr.
Conway suggested keeping the order. Commissioner DeBone suggested
keeping the ventilators on order and have a discussion with Emergency
Services Manager. Commissioner Adair worries the equipment will just sit in
storage somewhere. Commissioner Adair recommends a discussion with
DCSO Sgt. Nathan Garibay.
Representative from Better Together Becca Tatum (via Zoom conference call)
reviewed childcare program needs and capacity with community
partnerships. The goal is to raise $1 million to support 1,000 children for a
nine -hour day through the end of the year. Better Together is a tri-county
effort coordinating with High Desert Education Service District and
Neighborlmpact. Commissioner DeBone expressed support of the program.
Scott Cooper of Neighborlmpact (via Zoom conference call) reported on the
communications on supporting the reopening of schools and preserving
existing program capacity. Regarding the winter shelters expenses, Mr.
Cooper stated the funding request could be moved to the childcare support
programs.
The updated funding opportunities will be presented at the BOCC meeting of
August 31, 2020.
Mr. Munn reported on the Broadband hotspots under Column B Housing
and Basic Needs. Chris Weiler, Health Services (via Zoom conference call)
BOCC MEETING AUGUST 26, 2020 PAGE 5 OF 8
reported on the need for upgraded broadband services to eliminate some
gaps of internet service. Mr. Weiler explained this equipment allows service
for 200 homes for internet hotspots to assist the public in virtual meetings
with their healthcare provider.
Communications Director Whitney Hale (via Zoom conference call) reported
on the Commissioner's inquiry on youth program needs in the community.
4H is planning small group workshops and are in need of support. Ms. Hale
should have a written report to include in the discussion on Monday.
Ken Betschart from the Small Business Development Center at COCC (via
Zoom conference call) explained their funding request under capital
formation for new courses to help businesses affected by COVID19.
Facilities Director Lee Randall (via Zoom conference call) reported on County
facilities needs in response to the COVID 19 under cleaning & supplies,
support to state court facilities to accommodate physical distancing and also
a court room to be located at the fair and expo center, and air filtration
upgrades.
RECESS: At the time of 12:26 p.m., the Board went into recess and reconvened at
1:00 P.M.
Commissioner Adair stated comments have been received on social meeting based
on a statement made earlier during the meeting by Neighborlmpact. She corrected
the information reporting that OSU is not providing childcare services.
15.Continued Deliberation - Thornburgh Golf Course Site Plan and
Consideration of Signature of Document No. 2020-579
Community Development Sr. Planner Will Groves (via Zoom conference call)
presented the continued deliberations for the Board's consideration. The
Board resumed deliberations. Commissioner DeBone thanked staff for their
work on this document. Commissioner Adair inquired if further work could
BOCC MEETING AUGUST 26, 2020 PAGE 6 OF 8
be done to tighten up the issues. Based on recommended edits, the decision
document will revised and presented to the Board later today for signatures.
DEBONE: Move approval of Document No. 2020-579 as amended
HENDERSON: Second
VOTE: DEBONE: Yes
HENDERSON: Yes
ADAIR: Chair votes yes. Motion Carried
OTHER ITEMS/COMMISSIONERS UPDATES:
• Commissioner Henderson reported the Clackamas County Commissioners
are on summer recess but will contact them asking for participation. The
Board supports the tour of the Clackamas County Veterans Village on
Tuesday, September 1.
• Commissioner DeBone commented on an open house in La Pine on
Thursday for the Russell property. Commissioner DeBone also has a La Pine
EMS Collaborative Workgroup meeting tomorrow regarding the review of the
ambulance service agreement.
• Commissioner Adair has a meeting Leah Horner of the Governor's office and
representatives of seven counties tomorrow. Commissioner Henderson
asked Commissioner Adair to ask the group about the state of Oregon
metrics for reopening of schools.
EXECUTIVE SESSION:
At the time of 1:49 p.m., the Board went into Executive Session under ORS 192.660
(2) (h) Litigation. The Board came out of Executive Session at 2:06 p.m. to direct
staff to proceed as discussed.
BOCC MEETING AUGUST 26, 2020 PAGE 7 OF 8
�*M
Being no further items to come before the Board, the meeting was adjourned at 2:09 p.m.
DATED this Day of 2020 for the Deschutes County Board of
Commissioners.
ATTEST:
RECORDING SECRETARY
PATTI ADAI CHAIR
— 41*1 -
ANTHONY DEBONE, VICE CHAIR
PHILIP G. HENDERSON, COMMISSIONER
BOCC MEETING AUGUST 26, 2020 PAGE 8 OF 8
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
10:00 AM, WEDNESDAY, AUGUST 26, 2020
Barnes Sawyer Rooms - Deschutes Services Center - 1300 NW Wall Street - Bend
This meeting is open to the public, usually streamed live online and video recorded. To watch it online, visit
www. d es ch u tes. o rg/m e e tines.
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.
Item start times are estimated and subject to change without notice.
CALL TO ORDER
MEETING FORMAT
In response to the COVID-19 public health emergency, Oregon Governor Kate Brown issued Executive Order
20-16 directing government entities to utilize virtual meetings whenever possible and to take necessary
measures to facilitate public participation in these virtual meetings.
Beginning on May 4, 2020, meetings and hearings of the Deschutes County Board of Commissioners will be
conducted in a virtual format. Attendance/Participation options include:
Live Stream Video: Members of the public may still view the BOCC meetings/hearings in real time via the
Public Meeting Portal at www.deschutes.org/meetings.
Citizen Input: Citizen Input is invited in order to provide the public with an opportunity to comment on any
meeting topic that is not on the current agenda. Citizen Input is provided by submitting an email to:
citizen input@deschutes.org or by leaving a voice message at 541-385-1734. Citizen input received before
the start of the meeting will be included in the meeting record.
Zoom Meeting Information: Staff and citizens that are presenting agenda items to the Board for
consideration or who are planning to testify in a scheduled public hearing may participate via Zoom
meeting. The Zoom meeting id and password will be included in either the public hearing materials or
through a meeting invite once your agenda item has been included on the agenda. Upon entering the
Zoom meeting, you will automatically be placed on hold and in the waiting room. Once you are ready to
Board of Commissioners BOCC Meeting Agenda Wednesday, August 26, 2020 Page 1
of 4
present your agenda item, you will be unmuted and placed in the spotlight for your presentation. If you are
providing testimony during a hearing, you will be placed in the waiting room until the time of testimony,
staff will announce your name and unmute your connection to be invited for testimony. Detailed
instructions will be included in the public hearing materials and will be announced at the outset of the
public hearing.
PLEDGE OF ALLEGIANCE
CITIZEN INPUT (for items not on this Agenda)
[Note: Because COVID-19 restrictions may limit or preclude in person attendance, citizen input comments
may be emailed to citizenInput@deschutes.org or you may leave a brief voicemail at 541.385.1734. To be
timely, citizen input must be received by 9:00am on the day of the meeting.]
CONSENT AGENDA
1. Consideration of Board Signature of Resolution No. 2020-025, Initiating the
Vacation of Portions of D.H. Yeoman Road and Cole Road
2. Consideration of Board Signature of Resolution No. 2020-047, to Increase FTE and
Transfer Appropriations in the FY 2020-21 Budget
3. Consideration of Board Signature of Resolution No. 2020-054 to Transfer
Appropriations and Reduce FTEs in the Deschutes County FY 2020-21 Budget
4. Consideration of Board Signature of Order No 2020-034, Vacating Portions of D.H.
Yeoman Road and Cole Road
5. Consideration of Board Signature of Document No. 2020-471. Agreement with
Youth Villages for Crisis and Transition Services
6. Consideration of Board Signature of Document No. 2020-575, an
Intergovernmental Agreement with the Oregon Department of Transportation for
Right of Way Services for US 20 at Ward/Hamby Intersection Improvement Project
7. Consideration of Board signature to reappoint Charla DeHate to the Deschutes
County Public Health Advisory Board
8. Consideration of Board signature to reappoint Steve Strang to the Deschutes
County Public Health Advisory Board
Board of Commissioners BOCC Meeting Agenda Wednesday, August 26, 2020 Page 2
of 4
9. Consideration of Board signature to reappoint Tami Pike to the Deschutes County
Public Health Advisory Board
10.Approval of Minutes of the August 17, 2020 BOCC Meeting
ACTION ITEMS
10:10 AM CONVENE AS THE GOVERNING BODY OF THE SUNRIVER SERVICE
DISTRICT
1. Consideration of Board Signature to Thank Ron Schmid of the Sunriver
Service District Managing Board
2. Consideration of Board Signature to Appoint Robert Foster to the Sunriver
Service District Managing Board
RECONVENE AS THE GOVERNING BODY OF DESCHUTES COUNTY
11. 10:15 AM Second Reading by Title Only of Ordinance No. 2020-013 - Lower
Bridge Mine Rezone, Westside - William Groves, Senior Planner
12. 10:30 AM Consideration of Signature of Board Order 2020-037 to Name a Public
Right of Way as Quail Farm Road (File 247-20-000062-RN) - Peter
Russell, Senior Planner
13. 10:45 AM
14. 11:00 AM
LUNCH RECESS
15. 1:00 PM
OTHER ITEMS
Triennial Title VI Policy Update - Whitney Hale, Communications Director
COVID-19 Update
Continued Deliberation - Thornburg Golf Course Site Plan and
Consideration of Signature of Doc No. 2020-579 - William Groves, Senior
Planner
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.
Board of Commissioners BOCC Meeting Agenda Wednesday, August 26, 2020 Page 3
of 4
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.
16.ORS 192.660 (2) (h) Litigation
ADJOURN
To watch this meeting on line, go to: www.deschutes.org/meetings
Please note that the video will not show up until recording begins. You can also view past
meetings on video by selecting the date shown on the website calendar.
m
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
oilaccommodations to make participation possible, please call (541) 617-4747.
FUTURE MEETINGS:
Additional meeting dates available at www.deschutes.org/meetingcalendar
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting please call 388-6572.)
Board of Commissioners BOCC Meeting Agenda Wednesday, August 26, 2020 Page 4
of 4
L�\�I E S c�G
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 26, 2020
DATE: August 19, 2020
FROM: Peter Russell, Community Development, 541-383-6718
TITLE OF AGENDA ITEM:
Consideration of Signature of Board Order 2020-037 to Name a Public Right of Way as
Quail Farm Road (File 247-20-000062-RN)
RECOMMENDATION & ACTION REQUESTED:
Motion to approve signing Board Order 2020-037 as presented.
BACKGROUND AND POLICY IMPLICATIONS:
The Board held a work session on August 24 on the naming of a 60-foot-wide public road that
extends a quarter -mile south of Couch Market Road as Quail Farm Road (File 247-20-000062-
RN). During review and approval of a non -farm dwelling at 19035 Couch Market Road, aka
16-11-26, Tax Lot 201, (Files 247-19-000555-CU/556-LM/557-LU558-LL) the Property
Address Coordinator noted the unnamed public right of way served more than three tax lots.
Under Deschutes County Code (DCC) 16.16.020 such a road must be named. John Menefee,
the applicant in the non -farm dwelling and lot line adjustment, subsequently applied for the
name Quail Farm Road (File 247-20-000062-RN). Staff sent out public notice, reviewed and
approved the application, noticed the decision, and received no appeals. Under DCC
16.16.030(1) the Board must sign an order approving the name. Board Order 2020-037 would
assign the name Quail Farm Road.
FISCAL IMPLICATIONS: None.
ATTENDANCE: Peter Russell, Senior Transportation Planner, CDD
MEMORANDUM
TO: Board of County Commissioners
FROM: Peter Russell, Senior Transportation Planner
DATE: August 19, 2020
SUBJECT: August 26 meeting on Board Order 2020-037 for proposed road name of Quail Farm
Road (File 247-20-000062-RN)
Background
John Menefee owns the property at 19035 Couch Market Road, aka County Assessor Map 16-11-26,
Tax Lot 201. The property abuts a 60-foot-wide unnamed public road which provides access to
Couch Market Road for six tax lots, including the applicant's. The 60-foot public road was created
in 1955, according to Deschutes County Records, Volume 110, Page 493.
The issue of naming the road was triggered by County approval of John Menefee's application File
247-19-000555-CU/556-LM/557-LL/558-LL, which established a non -farm dwelling on Exclusive
Farm Use (EFU) property, site plan review, and two associated lot line adjustments. The land use
approval became final on October 15, 2019. During review of the application, the Property Address
Coordinator commented that DCC 16.16.020 requires a road which provides access to three or more
tax lots must be named.
The applicant during the land use process had presented two alternate routes to access the
property, one from the east side of the property and one from the west; both would require
compliance with DCC 16.16.020. Following the approval of the above land use, Mr. Menefee applied
on January 27, 2020, to name the road (File 247-20-000062-RN). Staff reviewed the applicant's
materials and as part of a completeness check sent a memo dated February 27, 2020, regarding
areas of concern. The applicant and his agent subsequently addressed those issues and selected
the western alternative. About this time, the COVID-19 pandemic hit and the applicant on March
20, 2020, agreed to toll the process for at least 90 days.
Staff Decision
Mr. Menefee, in accordance with Deschutes County Code 16.16 (Road Naming), submitted an
application (File 247-20-000062-RN) to name the public road. The Property Address Coordinator
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
Q� (541) 388-6575 @ cdd@deschutes.org @ www,deschutes.org/cd
and staff reviewed the four proposed names and selected Quail Farm Road. Staff found the name
Quail Farm Road complied with DCC 16.16.030(E)(1) and (2).
Staff received two voice mails and a July 23, 2020, e-mail from Pam Hayes, an affected property
owner, forwarded to me by Peter Menefee, a relative of the applicant. Ms. Hayes had questions
regarding whether the prospective Quail Farm Road was a private road or not; whether the entire
60 feet would be paved; whether the road would be extended; whether the traffic volumes would
change; and would the County assume maintenance of the road. Staff replied on July 24 that the
road was public; the road's surface would remain unchanged; the road was just being renamed, not
extended; staff expected traffic volumes would remain the same; and that as this was a Local Access
Road, by statute the County could not assume maintenance.
Staff has not received any further questions, written opposition, or appeals on the proposed name
from those who meet the requirements of DCC 16.16.030(B) and (G).
Staff mailed notice of the application on June 23 and again on July 14 to correct a mailing error. The
notice of the decision that staff approved the name was mailed on August 6. Under DCC
16.16.030(B) public comments on the proposed road name are limited to those owning property
abutting the affected road or having an address on the affected road. Staff received no comments
other than those summarized above.
The 10-day appeal period ended August 16 and staff did not receive any appeals. DCC 16.16.030(I)
requires the Board to sign an order approving the name within 10 days of the appeal period's end.
The August 26 public meeting for Board Order 2020-037, which implements the approval of Quail
Farm Road under File 247-20-000062-RN, complies with the required timeline.
Staff held a work session with the Board on August 24 on File 247-20-000062-RN and the naming of
Quail Farm Road.
Staff is available for any questions.
Enclosures: Board Order 2020-037
Board Order 2020=037, Exhibit A (Quai Farm Road map)
Board Order 2030-037, Exhibit B (Findings and Decision for File 247-20-000062-RN)
CS11928 survey displaying public road from DR Vol 110, Page 492
Map of Quail Farm Road
Peter Russell, February 27, 2020, memo
Includes Peter Menefee February 24, 2020, e-mail with drawing
Pam Hayes July 23, 2020, e-mail via Peter Menefee
Peter Russell July 24,2020, e-mail to Pam Hayes
Findings and Decision for File 247-20-000062-RN
Page 2 of 2
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o c 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 26, 2020
DATE: August 20, 2020
FROM: Whitney Hale, Administrative Services, 541-330-4640
TITLE OF AGENDA ITEM:
Triennial Title VI Policy Update
RECOMMENDATION & ACTION REQUESTED:
Approval of Title VI Policy (GA-16) draft update and Title VI draft plan
BACKGROUND AND POLICY IMPLICATIONS:
Every three years, recipients of federal transit funds are required to submit an updated Title VI program to the
Federal Transit Administration. The County's Title VI Policy (GA-16) was approved on January 27, 2016 and
updated in March of 2019.
Staff have updated GA-16 in accordance with guidance from the Oregon Department of Transportation to clarify
that customers can file Title VI complaints directly with the Oregon Department of Transportation Office of Civil
Rights. The attached draft update of GA-16 also references a new Title VI plan that can be updated every three
years in accordance with federal requirements. The Title VI Plan contains updated information and demographic
data that was previously included in GA-16.
FISCAL IMPLICATIONS: None
ATTENDANCE: Whitney Hale, Communications Director; Erik Kropp, Deputy County
Administrator
Deschutes County Administrative Policy No. GA-16
Effective Date: January 27, 2016
Updated: August _, 2020
TITLE VI OF THE CIVIL RIGHTS ACT
STATEMENT OF POLICY
Deschutes County is committed to providing programs and services that are free of all forms of
discrimination based on factors that include, but are not limited to, race, ethnicity, age, disability
status, and sexual orientation. The County will take preventive, corrective, and/or disciplinary
action when necessary against behavior that violates this policy or the rights and privileges it is
designed to protect.
APPLICABILITY
All programs of Deschutes County are subject to this policy regardless of funding source.
Individual grants and programs may carry additional requirements.
DEFINITIONS
For the purpose of this policy, unless otherwise specified, the following defmitions shall apply:
• Color: Skin color or complexion
• Discrimination: An intentional or unintentional action through which a person, solely
because of race, color, national origin, religion, gender/gender identification, or sexual
orientation has been subjected to unequal treatment under a program or activity offered by
the County.
• National Origin: A person's, or a person's ancestor's, place of birth. May also refer to the
physical, cultural, or linguistic characteristics associated with ethnicity or ancestry.
• Race: A social classification of people which includes, but may not be limited to, White,
Hispanic or Latino, Black or African American, American Indian or Alaska Native, Asian,
Native Hawaiian or Other Pacific Islander as defined by the U.S. Census.
• Limited English Proficiency (LEP): One who does not speak English as a primary language
and who has limited ability to read, speak, write, or understand English.
PROCEDURES
Title VI Coordinator:
The Deputy County Administrator serves as Deschutes County's Title VI Coordinator and acts
as the focal point for Title VI implementation and monitoring.
Public Notice:
A Title VI Notice to the Public will be posted on Deschutes County's website at
www.deschutes.or and in a public area within each County facility. A copy of the Deschutes
County Title VI Notice to the Public is attached to this document as Appendix A. The
Department of Administrative Services will also provide copies to departments for posting.
Complaints:
Any person who believes they have been discriminated against by Deschutes County on the basis
of race, color, or national origin may file a complaint by completing and submitting a Title VI
Complaint Form. Complaints must be complete in both form and content to be reviewed and
must be submitted within 180 days of the alleged incident of discrimination to be considered. A
copy of the Deschutes County Title VI Complaint Form is attached to this document as
Appendix B. To request a separate Title VI Complaint Form:
• Call541-388-6570
• Visit the Deschutes County Department of Administrative Services located at:
1300 NW Wall Street, Suite 200
Bend, OR 97703
• Write to:
Department of Administrative Services
Deschutes County
PO Box 6005
Bend, OR 97708-6005
• Email: adminka descliutes.org
• Download the document from Deschutes County's website at www.deschutes.org
Complaints may be submitted to the Deputy County Administrator by hand -delivery at the
physical address or by U.S. postal service to the mailing address shown above or can be
submitted directly to the ODOT Office of Civil Rights or the Federal Transit Administration
(FTA) at:
ODOT Office of Civil Rights -MS 23
3930 Fairview Industrial Drive SE
Salem, OR 97302
(503) 986-3169
Federal Transit Administration, Region 10
Attn: Civil Rights Officer
Jackson Federal Building
915 Second Avenue Suite 3142
Seattle, WA 98174-1002
(206) 220-7954; Fax (206) 220-7959
When applicable, a complainant may also file a Title VI complaint directly with any federal
agency that supplies funding to Deschutes County in support of the applicable program or
service in which the alleged incident occurred. Examples of federal agencies that provide
funding to the County include, but are not limited to, the U.S. Environmental Protection Agency,
Department of Agriculture, Department of Justice, Department of Health and Human Services,
Department of Homeland Security, and Department of Transportation. Contact information for
the Office of Civil Rights operating in such agencies may be found online.
At such time as the complaint is received, the Department of Administrative Services will review
it to determine if Deschutes County has jurisdiction over the matter. Within 10 business days,
the County will return an acknowledgment letter stating whether the complaint will be
investigated by the County. Deschutes County will make every effort to investigate complaints
within no more than 90 days following the date on this letter. However, in the event of complex
complaints which address multiple issues and/or involve legal action, the County may require an
extended period to fully investigate and respond. In such cases, the complainant will be
informed of the delay.
If more information is needed to resolve the case, the assigned investigator may contact the
complainant. The complainant has 10 business days from the date of the letter to return the
requested information to the investigator. If the investigator is not contacted by the complainant
or does not receive the requested information within 10 business days, Deschutes County will
administratively close the case. A case will also be administratively closed upon withdrawal by
the complainant.
After the investigator reviews the complaint, they will issue one of two letters to the
complainant: A closure letter or a letter of finding (LOF). A closure letter summarizes the
allegations and investigation, indicates that a Title VI violation did not occur, and states that the
case will be closed. An LOF summarizes the allegations and investigation and explains whether
corrective or other action will occur. If the complainant wishes to appeal the decision, they have
10 business days following the date of the letter or the LOF to do so. To submit an appeal,
complainants must deliver a written letter explaining the basis of the appeal to the Deputy
County Administrator. County officials will review the factors presented and issue a final formal
decision within 30 business days following the date of the appeal letter.
The County will provide, upon request, a list of all active investigations, lawsuits, or complaints
made on the basis of race, ethnicity, age, disability status, gender/gender identification, and
sexual orientation. A copy of the Deschutes County List of Title VI Investigations, Complaints,
and Lawsuits form is included in the County's Title VI plan and contains a name, date of filing,
summary of the allegation(s), status of the investigation, and action(s) taken.
Public Participation:
Deschutes County employs a wide variety of strategies to solicit, consider, and incorporate the
perspectives of diverse populations in policy and decision -making processes. Such opportunities
for involvement are outlined in the County's Title VI plan, which is updated in accordance with
federal and state requirements.
Language Assistance:
Deschutes County takes reasonable steps to offer assistance for LEP clients and residents seeking
meaningful access to services and opportunities. When appropriate, the County will use
population composition and client needs in regard to language for the purpose of developing and
providing programs and services, disseminating information, conducting outreach, and
encouraging public involvement. A copy of the most current data and a description of the
strategies the County uses to help serve LEP persons is included in the County's Title VI plan.
Reporting•
Deschutes County will report information required to determine compliance with Title VI of the
Civil Rights Act as required by federal and state government agencies for grant funding and
other purposes. The contents and format of such reports will be determined by the requesting
party.
Approved by the Deschutes County Board of Commissioners on January 27, 2016 and reviewed on
August 26, 2020
Tom Anderson
County Administrator
Appendix A
DESCHUTES COUNTY
TITLE VI NOTICE
Deschutes County operates its programs and services without regard to race, color; or national
origin in accordance with Title VI of the Civil Rights Act. Any person who believes they have
been subjected to an unlawful discriminatory practice as defined under Title VI of the Civil
Rights Act may file a complaint with the Deschutes County Department of Administrative
Services.
For more information about Deschutes County's civil rights program and the obligations and
procedures required to file a complaint:
• Call541-388-6570
• Visit the Deschutes County Department of Administrative Services located at:
1300 NW Wall Street, Suite 200, Bend, OR 97703
• Write to:
Department of Administrative Services, Deschutes County
PO Box 6005 Bend, OR 97708-6005
• Email admire ,deschutes.org
• Download the document from Deschutes County's website at www.deschutes.ory.
Complaints can also be submitted directly to:
ODOT Office of Civil Rights -MS 23
3930 Fairview Industrial Drive SE
Salem, OR 97302
(503) 986-3169
Federal Transit Administration, Region 10
Attn: Civil Rights Officer
Jackson Federal Building
915 Second Avenue Suite 3142
Seattle, WA 98174-1002
(206) 220-7954; Fax (206) 220-7959
When applicable, a complainant may also file a Title VI complaint may also be filed directly
with any federal agency that supplies funding to Deschutes County in support of the applicable
program or service in which the alleged incident occurred. Examples of federal agencies that
provide funding to the County include, but are not limited to, the U.S. Environmental Protection
Agency, Department of Agriculture, Department of Justice, Department of Health and Human
Services, Department of Homeland Security, and Department of Transportation. Contact
information for the Office of Civil Rights operating in such agencies may be found online.
If this information is needed in another language or format, please call 541-388-6584.
Si se necesita esta informacion en un idioma o formato diferente, por favor Name a
541-388-6570.
Appendix B
DESCHUTES COUNTY
TITLE VI COMPLAINT FORM
Section I
Name:
Address:
City, State, Zip Code:
Telephone (home): Telephone (work):
Email Address:
Check the box if you require
Large Print
TTY
Audio Tape
Other
this form in an alternative
format.
❑
❑
❑
❑
Section II
Are you filing this complaint on your
Yes
No
own behalf?
El
El
If yes, skip to Section III.
If no, please supply the name and
relationship of the person you are
representing.
Explain why you have submitted a claim
on behalf of a third party.
Confirm that you have obtained
Yes
No
permission to submit this claim by the
third party.
❑
❑
Section III
Identify the factor(s) on which you
believe the alleged discrimination was
based.
Date of alleged discrimination:
Name of County department and/or
facility where alleged discrimination
took lace:
Explain as clearly as possible what
happened and why you believe you were
discriminated against.
Describe all person(s) who were
involved, including the name and
contact information for the person(s)
who allegedly discriminated against you
if known.
List name(s) and contact information for
any witnesses to the alleged
discrimination.
Section IV
Have you previously filed a Title VI
complaint against Deschutes County?
Yes
No
El
Section V
Have you filed this complaint with any
other federal, state, or local agency, or
with any federal or state court?
Yes
❑
No
❑
If yes, check all agencies or courts in
which a complaint was filed and enter
the name of the agency or court.
Federal
Agency
Federal
Court
State
Agency
State
Court
Local
Agency
Name:
Name:
Name:
Name:
Name:
Provide contact information for the
Name:
Title:
person at the agency or court who
Organization:
received and/or investigated this
Address:
complaint.
City, State, Zip Code:
Telephone:
If you need more space to complete the information above, please attach additional sheets and label your
responses to correspond with the section number and question shown on the form. If you have other written
materials or supporting documentation that you believe is relevant to your complaint and should be considered
during the investigation, please attach it to this form.
Sign and date this Title VI Complaint Form below:
Signature
Printed Name
Hand deliver this form to:
Deputy County Administrator
Department of Administrative Services
Deschutes County
1300 NW Wall Street
Bend, OR 97703
Date
Or mail it to:
Deputy County Administrator
Department of Administrative Services
Deschutes County
PO Box 6005
Bend, OR 97708-6005
If this information is needed in another language or format, please call 541-388-6584.
Si se necesita esta informacion en un idioma o formato diferente, por favor llame a
541-388-6570.
Civil Rights Title VI Plan
Policy Statement
As outlined in Deschutes County Administrative Policy No. GA-16, Title VI of the Civil
Rights Act, Deschutes County is committed to providing programs and services that are
free of all forms of discrimination based on factors that include, but are not limited to, race,
ethnicity, age, disability status, and sexual orientation. The County will take preventive,
corrective, and/or disciplinary action when necessary against behavior that violates this
policy or the rights and privileges it is designed to protect.
All programs of Deschutes County are subject to this policy regardless of funding source.
Individual grants and programs may carry additional requirements.
Legal Authority Requiring Title VI Compliance
The Civil Rights Act of 1964 (the Act) is federal legislation that prohibits discrimination on
the basis of race, color or national origin in federally funded programs, services and
activities. Title VI has also been implemented to require that persons with limited English
proficiency have meaningful access to programs, services, and activities; and that decision -
making processes are designed to avoid, minimize, or mitigate adverse environmental
effects, including social and economic effects, on communities of color and low-income
populations. Other federal and state legislation prohibits discrimination based on disability,
religion, age, sex, sexual orientation, gender identity, or source of income.
Administration of the Title VI Compliance Program
Administration of Deschutes County's Civil Rights Title VI Program of this plan is housed
with the Deputy County Administrator. The Deputy County Administrator can be contacted
by mail at County Administration, 1300 NW Wall Street, Bend, Oregon, 97703, by phone at
(541) 388-6570 or by email at admin@deschutes.org.
Complaint Process
Deschutes County is committed to continually improving our work and welcomes any
comments or suggestions on how the County can improve delivery of our services, or its
communication with community members. The County also is committed to ensuring
equity and fairness in the provision of its services, inclusion of all community members in
the planning and decision -making process, and transparency in how Department decisions
are made. Every effort will be made to resolve complaints quickly and to the satisfaction of
the complainant.
Any person who believes that he or she has been excluded from participation in County
activities or programs, or has received unequal treatment or discrimination in the receipt
of County benefits, or services based on their race, color, or national origin (including
limited English proficiency) has the right to file a Title VI Civil Rights Act discrimination
complaint with the Title VI Officer. Deschutes County's complaint procedure is located in
Deschutes County Administrative Policy No. GA-16, Title VI of the Civil Rights Act.
Public Participation
Deschutes County employs a wide variety of strategies to solicit, consider, and incorporate
the perspectives of diverse populations in policy and decision -making processes. Such
opportunities for involvement are designed to engage all segments of the public in an
early, open, continuous, and effective manner and include: `
1. Complying with all applicable laws, rules, and regulations concerning public
involvement and public meeting protocol.
2. Maintaining buildings and facilities that are fully accessible and compliant with the
Americans with Disabilities Act (ADA).
3. Providing notice and information regarding issues, processes, and decisions in a timely
manner, which allows for adequate public review and participation.
4. Ensuring that printed materials, such as public notices and records, meeting and
hearing schedules, minutes and supporting documents, web content, and other written
communications can be made available in both traditional and alternative formats,
including large text, electronic, audio, braille, and multiple languages upon request.
5. Facilitating access to meetings and interviews through conference calls and video-
conferencing, sign and interpretation.
6. Holding meetings and hearings in diverse geographic locations throughout the County
on a periodic basis.
7. Inviting all members of the public to enroll in County College, a multi -week course
designed to educate participants about elections, governance, infrastructure, finance
and budgeting, public safety, land use, health services, and other County operations.
8. Seeking age, physical ability, ethnic, cultural, economic, and geographic diversity in
appointing members to quasi-judicial and advisory committees, such as:
• Audit Committee
• Bicycle/Pedestrian Advisory Committee
• Board of Property Tax Appeals
• Budget Committee
• Dog Control Board
• Fair Board
• Investment Advisory Committee
• Historic Landmarks Commission
• Mental Health Advisory Board
• Noxious Weed Advisory Board
• Planning Commission
• Public Health Advisory Board
Public Safety Coordinating Council
Special Transportation Fund Advisory Committee
Statewide Transportation Improvement Fund Committee
Since the previous Title VI policy update in 2019, County staff have made additional
outreach efforts, including sharing social media content in both English and Spanish and
launching a new Facebook page, El Condado de Deschutes, that will provide content to the
public in Spanish.
Staff has also engaged culturally specific local media to bolster existing outreach efforts.
Communications staff, in coordination with the County's IT Department, has also worked to
improve the ease with which website content can be translated and will continue to
prioritize these efforts.
Staff has also worked to translate a significant portion of the centraloregonfire.org website
into Spanish and installed a translation tool for translation of news / blog posts.
The County, through the Sheriffs Office, is also working to ensure underrepresented
groups are included in long term recovery planning.
The County will continually assess its communications and public involvement strategies
and will employ best practices that foster meaningful involvement by traditionally
underrepresented persons. The County will use non-discrimination notices to notify the
public of the protections provided by Title VI and related statutes. The County is committed
to fully utilizing available culturally specific publications or media and, where appropriate,
provide written or verbal information in languages other than English.
Deschutes County prioritizes timely, accurate, and effective communications regarding
initiatives, issues, decisions, actions, projects, programs, and situations that may affect the
public. Avenues of public involvement and communication include events, publications,
media interviews, press releases, the Internet, social media, public presentations, as well as
involvement and outreach through the Board of County Commissioners, Advisory Boards
and Commissions, and other community and business organizations.
Deschutes County has tasked staff to promote communication, cooperation and strong
connections between County government and its citizens, the business community, and
other government agencies to provide information to respond to key issues and increase
awareness of opportunities and resources.
Deschutes County emphasizes effective two-way communication between the County and
involved citizens in order to provide consistent and relevant information about County
activities that affect residents and businesses, to assure meaningful public involvement in
decision making.
4
Limited English Proficiency (LEP)
The County recognizes that language can be a barrier to accessing benefits or services,
understanding and exercising rights, complying with regulations, or understanding other
information provided by its programs and activities. Residents with Limited English
Proficiency (LEP) are people who do not speak English as their primary language and have
limited ability to read, write, speak, or understand English. For purposes of this plan,
translation refers to written communication and interpretation refers to spoken and signed
communication.
Deschutes County, as a recipient of federal funds, must ensure that people with limited
English proficiency have access to its programs, benefits, services, and activities. No person
should be deprived of such access because of their language skills or English proficiency.
The County has also implemented a variety of strategies to help serve LEP persons:
Recruitment, hiring, and personnel practices. The County has established a Language
Access Coordinator position within its job classification system, which can be
employed by departments with high levels of LEP clientele to translate and interpret
policies, procedures, program information, and service options on -site. Additionally,
and when warranted, general recruitments may specify a preference for bilingual
capabilities. If approved by management, and subject to any applicable collective
bargaining agreement, staff filling bilingual positions may be eligible for
supplemental pay.
• Training. The County periodically offers Spanish language classes within its catalog
of training opportunities that are open to all staff members with supervisor
approval. Additional training opportunities in language and interpretation may also
be offered on occasion at the discretion of individual departments.
• Written Communications. Many brochures and informational materials are routinely
translated and printed in Spanish. Public notices and records, meeting and hearing
schedules, minutes and supporting documents, and other printed information may
be translated upon request.
Verbal Communications. Departments may access independent interpretation
services, including private contractors and consultants, computer software, and
language lines to communicate with clients and customers in -person, during group
meetings, and on the telephone.
5
Approved by the Deschutes County Board of Commissioners on August _, 2020.
Tom Anderson, County Administrator
0
Civil Rights Title VI Plan Appendices
Appendix A: Deschutes County Minority Representation
The table below depicts membership of the County's non -elected, transit -related advisory
boards broken down by race. The Federal Transit Authority requires that recipients who
have transit -related advisory councils or committees provide a table depicting the racial
breakdown of the membership of those committees and a description of the efforts made
to encourage the participation of minorities on such committees or councils.
Population,
African
Asian
Native
Body
July 2017
Caucasian**
Latino**
American**
American**
American**
Estimates*
Deschutes
182,930
93.3%
7.7%
0.5%
1.2%
0.6%
County
Special
Transportation
Fund Advisory
5***
100%
0%
0%
0%
0%
Committee
(STFAC)
Statewide
Transportation
Improvement
13
96%
0%
0%
4%
0%
Fund (STIF)
Committee
*Population Research Center, College of Urban and Public Affairs, Portland State University
** American Community Survey, 5-Year Estimates (2011-2015)
***Not all members of the Countys STFAC provided a response to inform this data request. The
data provided is representative of the responses received.
Recruitment process for committee involvement:
The County currently follows the recruitment strategies outlined in its Equal Employment
Opportunity Program (EEOP) to ensure diverse participation on non -elected boards and
advisory committees.
In the future, recruitment best practices for non -elected boards and advisory committees
will be addressed in the County's Recruitment and Selection Guide, which is currently in
development.
9
Appendix B: List of Title VI Investigations, Complaints and Lawsuits
In order to comply with FTA requirements, recipients must prepare and maintain a list of
public transportation -related Title VI investigations, complaints and lawsuits. As shown
below, Deschutes County has not received any discrimination complaints, has conducted
no discrimination investigations and has not been named in any discrimination lawsuits.
Name Date Summary Status Action(s) Taken
Investigations
1.
2.
3.
Lawsuits
1.
2.
3.
Complaints
1.
2.
3.
Appendix C: Limited English Proficiency
Analysis:
The language proficiency information shown in the table below is based on the U.S. Census
Bureau 2013-2017 American Community Survey.
Language 1 (LEP
Total
Total LEP
Language
Language
/o of Total
Population
1 Name
1 (# LEP)
population)
Deschutes
151,246
3,770
Spanish
3,130
2.49%
County
Frequency:
The most frequent exposure with LEP individuals occurs within the County's Health
Services Department. The Department offers services in more than 40 locations, including
public schools and school -based health centers, hospitals, social -service organizations,
health clinics, care facilities, and homes. As a result, the Health Services Department
employs the largest number of English -Spanish speakers within the County. Bilingual staff
members are recruited on an ongoing basis in the roles of both clinical and support staff to
ensure that LEP clients can access services and have their health care needs met. The
Department also offers Equity and Inclusion training to all employees and supports staff
members who wish to become certified as Healthcare Interpreters. Additionally, the
Department prints and posts public notices and informational brochures in both English
and Spanish and uses external translation and interpretation services when needed.
Importance:
Although many programs and services offered by Deschutes County are vital to the LEP
community, health care appears to be the most significant. The Health Services
Department offers disease prevention, chronic illness treatment, family planning, child
wellness, women, infants, and children (WIC) nutrition, immunizations, substance abuse
treatment, suicide prevention, and emergency preparedness. Additionally, many of the
Department's clients come from disadvantaged, vulnerable, or underserved populations
and require special accommodations to access the same services that are more widely
available to others.
Resources and Costs:
Although not unlimited, Deschutes County does provide adequate resources, upon
identified need, within the annual budget for bilingual recruitments, Spanish language
courses, printing, and translation and interpretation services.
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Costs Incurred
to Date
Eligible Expenditures
I.
Medical Expenses
A. Public hospitals, clinics, and similar facilities
B. Tem ora ublic medical facilities
'...... ......... ..,.,... ..
... ........ ...... ... ......
C. COVID 19 testing, mcludmg serological testing
11111",-D.
Emergency medical response expenses
E. Telemedicine capabilities
.................. . , ., .......:, ...,.., , . ... ..... ,
„.,.. , 8,8 01
II.
Public Health Expenses
A. Communication and enforcement
32,384
,.
B. dic Meal and rotective^supphes
16072 ,0
C. Disinfecting public areas and other facilities
...., . ........ .., „ . ,... .,, .....
131,092
.. . .. .... .....
.. ..........
D. Technical assistance on COVID-19 threat mitigation
o............................... ...,
E. Public safety measures ...,
9,7 67
..
F. Quarantining individuals
III
Payroll expenses for employees dedicated to COVID-19
914,100
IV.
Expenses to facilitate compliance with COVID-19-measures
A. Food delivery to residents ... ,, ..
12,581
.. ...
B. Distance learning tied to school closings
............................
. . ..... .
C. Telework capabilities ; , ... ......... ... , . ,
8,5
., ................ .... ....,.., .,,, ., , ............
D. Paid sick and paid family and medical leave
123,594
E. COVID 19 related expenses in county jails
5,194
. ....... ... „ . , ,..
F. Care for homeless populations
- .......... .... ...... ....,.,,,,,.,,, ,.......,
35,009
,
V.
Other Eligible Expenses (Specifically Identify)
A. Small Business Interruption Grants
. .... ... ..... . ...,,.,,.,.. ..... ,,. .
„ 279,718
....
B.......; ... ...
C.
D
E.
Total Cumulative Request for COVID-19 Funding
1,790,855
Previous Reimbursements
(1,482,527)
Third Reimbursement Request
308,328
May 18, 2020 Deschutes County 08.07.20_CRF Request Form
AGENDA REQUEST & STAFF REPORT
For Board of Commissioners BOCC Wednesday Meeting of August 26, 2020
DATE: August 20, 2020
FROM: William Groves, Community Development, 541-388-6518
TITLE OF AGENDA ITEM:
Continued Deliberation - Thornburg Golf Course Site Plan and Consideration of Signature
of Doc No. 2020-579
RECOMMENDATION & ACTION REQUESTED:
The Board will conduct continued deliberations on appeals of a golf course for the
Thornburg Destination Resort and consider signature of Doc No. 2020-579, a draft
decision in this matter.
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. The Board conducted initial deliberations on
August 12, 2020 and directed staff to produce a draft decision to facilitate these further
deliberations.
FISCAL IMPLICATIONS: None
ATTENDANCE: Will Groves, Legal
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
DECISION OF THE DESCHUTES COUNTY BOARD OF COUNTY COMMISSIONERS
File Number: 247-19-000881-SP, 247-20-000279-A, and 247-20-
000282-A.
Appellant: Annunziata Gould and Central Oregon Landwatch
Applicant/Owner: Central Land and Cattle Company, LLC
Proposal: Affirm Approval of Site Plan
Subject Property: Tax Lots 7700, 7800, and 7900, Map 15-12-00
Planning Staff. Cynthia Schmidt, Planner: Staff Decision
Will Groves, Senior Planner, Appeal
DECISION
The Board of County Commissioners (BOCC) adopts and incorporates by reference the basic
findings, code interpretations, findings of fact and conclusions of law set forth in the April 1,
2020 Administrative Decision except for the findings relating to the DCC Sections identified
below. To the extent there are conflicts between any of the findings identified above and the
findings below, the findings and conclusions below shall control.
BACKGROUND FINDINGS.
A. Application Review Process. On December 11, 2019 Kameron DeLash mutt and Central
Land and Cattle Company, LLC (Applicant) submitted a request for a Site Plan Review (SP)
for the Thornburgh Phase A golf course which included lakes that were approved by the
Conceptual Master Plan (CMP, File No. CU-05-20) and Final Master Plan (FMP, File No., M-
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course Pagel of 16
07-2, MA-08-6) for the destination resort. The Planning Division issued an administrative
approval without a public hearing on April 1, 2020 determining the Applicant met the
applicable criteria. Annunziata Gould and Central Oregon Landwatch (COLW) (collectively,
Appellants) appealed the approval to a hearings officer. The Applicant asked the BOCC,
instead of the hearings officer, to hear the appeal, which it agreed to do.
The Appellants and others in opposition presented evidence and testimony in opposition
to the application. On June 17, 2020, the BOCC held a hearing to receive evidence and
testimony from the parties. The Applicant submitted evidence and testimony in support
of the application. At that time the Appellants requested that the record remain open for
additional evidence, which the BOCC granted. The BOCC set a deadline of July 1, 2020 for
the submittal of additional evidence (the Open Record Period). The BOCC further set a
deadline of July 8, 2002 for the rebuttal of evidence submitted during the Open Record
Period, and a date of July 15, 2020 for the submittal of the Applicant's Final Legal
Argument.
On July 27, 2020, after the record closed, Gould's attorney, Karl Anuta, submitted a
response to a record objection contained in the Applicant's Final Legal Argument. Anuta
argued that a previous submittal during the rebuttal period was limited to evidence or
testimony submitted by the Applicant on July 1, 2020. The BOCC opened the record
(Order #2020-045) to accept both Anuta's July 27 letter and a response provide by the
Applicant on July 29.
B. Prior Land Use Reviews. The Thornburgh Destination Resort has a lengthy and complex
history that began in 2005, and includes decisions by Hearings Officers, the BOCC, the
Land Use Board of Appeals (LUBA), the Oregon Court of Appeals, and the Oregon
Supreme Court. Pages 3-5 of the Administrative Decision provides details of the various
actions and approvals prior to this application.
C. Golf Course and Lake Site Plan. This decision approves an 18-hole golf course and
irrigation lakes. This decision does not approve development of an additional 9-hole golf
course or other golf facilities, nor does it approve recreational use of the lake(s) at this
time. No bonding or other financial assurances were proposed.
D. Lot of Record. The subject property is a part of the greater Thornburgh Resort property
that was determined to be a Lot of Record pursuant to DCC 18.04.030 in the BOCC's
decision approving the Thornburgh CMP. It, therefore, is eligible for development. COLW
in this appeal argued that Tax Lot 7701 was unlawfully created and, therefore, Tax Lot
7700 is not a lot of record. As noted, that issue was resolved in the CMP decision, wherein
the County found that Tax Lot 7701 was a lot of record with a part of Tax Lot 7700.
KEY ISSUES CONSIDERED UNDER APPEAL
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course Page 2 of 16
A. Does the County have jurisdiction to decide this issue?
The County approved a tentative plan for Phase A-1 of the Thornburgh resort. Gould
appealed that approval to LUBA. LUBA remanded the decision to Deschutes County. Gould
filed an appeal of LUBA's decision to the Oregon Court of Appeals, but that appeal was
dismissed due to a lack of jurisdiction. Gould appealed that dismissal to the Oregon Supreme
Court. The Oregon Supreme Court accepted review and has not yet issued a decision. In the
meantime, the Applicant initiated a review on remand and the County again approved the
tentative plan. Gould also appealed that tentative plan decision to LUBA, but that second
LUBA matter is currently being held in abeyance until the Oregon Supreme Court addresses
the merits of the Court of Appeals' dismissal of Gould's aforementioned appeal.
Gould and COLW argue the County does not have jurisdiction of the current application
because appeals of the Phase A-1 tentative plan are pending. Without citing applicable legal
authority, Gould's argued that the subject site plan application depends entirely on the
outcome of the Phase A-1 tentative plan appeals, and jurisdiction remains with those
appellate bodies until there are final decisions on both aforementioned appeals
Gould further argued that the decision in this case is dependent on the survival of the
configuration and specific details of the Phase A-1 tentative plan and site plan approved by
the cases on appeal. The BoCC disagrees. The Phase A-1 tentative plan decision on appeal
does not approve a site plan. Instead, it authorizes the division of lots from the greater
Thornburgh property. The relevant approval criteria for the subject golf course and irrigation
lakes do not require that the property be divided.
The subject site plan and the Phase A-1 tentative plan application are separate development
applications for different development activities authorized to occur in Phase A of the
Thornburgh Resort. Each application was reviewed, as described below, as the third step in
a 3 step process, and neither is dependent on the other. Each application was independently
reviewed for its compliance with the FMP and relevant provisions of the County code. One
application was reviewed under tentative plan criteria and the other application was
reviewed under site plan criteria. The fact that each application was required to establish
that it complied with the FMP did not cause the subject site plan to hinge upon the outcome
of the Phase A-1 tentative plan appeals as argued by Gould.
DCC Chapter 18.113 calls for a 3 Step approval process whereas the 3'd steps, that of the
Phase A-1 tentative plan or subject site plan, were both dependent on Steps 1 (the CMP) and
2 (the FMP). DCC Chapter 18.113 does not call for each element of the V steps to be
dependent on other V step elements. The Phase A-1 tentative plan under appeal was
reviewed under criteria for tentative plans and the project status in 2018 whereas the subject
site plan application was reviewed under the different site plan criteria and the project status
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course Page 3 of 16
in 2020, Furthermore, both the CMP (Step 1) and FMP (Step 2) approved the golf course and
lakes subject to site plan review. The CMP required the construction of a golf course in the
initial development, which this site plan is consistent with. The BOCC does not find any legal
support in the code or statutes for the Appellants' arguments that the subject site plan is
dependent on the Phase A-1 Tentative plan. The BOCC finds the subject site plan is not
dependent on the Phase A-1 tentative plan, and the BOCC therefore has the jurisdiction to
decide this matter.
B. Collateral Attacks.
The BOCC finds that many issues raised by Appellants in these proceedings were either; i)
raised and resolved against the opponents in previous stages of the resort's multi -stage
approvals process, or; ii) could have been raised during the review of the CMP or FMP but
were not. Where this is the case, the issue is settled and not grounds for denial of a Stage 3
review application. Under the principle of collateral attack, a land use decision intended to
serve as a final determination of a land use issue such as the Thornburgh CMP and FMP may
not be challenged in a later proceeding that implements or relies on the earlier, final
decision. LUBA has explained the rule as follows:
"As a general principle, issues that were conclusively resolved in a final discretionary land
use decision, or that could have been but were not raised and resolved in that earlier
proceeding, cannot be raised to challenge a subsequent application for permits necessary
to carry out the earlier final decision." Safeway, Inc. v. City of North Bend, 47 Or LUBA 489, 500
(2004) (citations omitted).
The Thornburgh FMP is the master plan that establishes the plan to be followed when site
plan and partition applications are filed with the County and is based on issues decided by
the CMP.
According to LUBA:
"All requirements of the CMP approval are now requirements of the [C]ounty's FMP approval.
The FMP approval has effectively incorporated and displaced the CMP approval:"
Central Land and Cattle Company, LLC v. Deschutes County, 74 Or LUBA 326, 328 n 1 (2016)
The Applicant, therefore, was not required to again demonstrate compliance with the CMP
or FMP approval criteria during the review of the subject golf course site plan. The criteria
set forth in DCC 18.113.060 and 18.113.070 are CMP approval criteria met by the CMP that
are not applicable to the subject site plan review. The informational requirements of DCC
18.113.050 apply to a CMP application only. The criteria set forth in DCC 18.113.090 are FMP
approval criteria met by the FMP that are not applicable to the subject site plan review (See
Relevant Approval Criteria and FMP Conditions, below). The point of the DCC's three -stage
review process is to require a master plan of the resort community that then guides the
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course Page 4 of 16
review of development actions. The DCC does not require a resort to re -litigate master plan
issues every time it seeks development approvals to implement the plans.
LUBA's application of the no collateral attack rule in Gould v. Deschutes County, _ Or LUBA _
(LUBA No. 2018-140, June 21, 2019) is instructive. In that case, LUBA held that challenges to
issues settled by the CMP and FMP are impermissible collateral attacks on the Thornburgh
CMP and FMP. LUBA found that challenges to Resort plans for Overnight Lodging Units (OLU)
and the wildlife mitigation plans are not permissible. Specifically, LUBA found that the
removal of dams on Deep Canyon Creek and the provision of mitigation water is required by
the FMP and is not relevant to the review of the tentative plan because the tentative plan did
not alter the mitigation plan that is a part of the FMP. The BOCC finds that the same
reasoning applies in this case concerning the subject golf course site plan. The Applicants
golf course site plan does not propose to modify the CMP or FMP. Rather, it proposes
development that is authorized and required by those plans. The Applicant is not proposing
any change to the mitigation plan so it is not relevant in this site plan review. See Id (slip op
at 37-38).
LUBA also determined and the BOCC agrees that compliance with the wildlife plan would be
determined by annual reporting as set out in FMP Condition 38 - not during review of the
tentative plan - where the development application does not alter any mitigation
requirement of the FMP mitigation plan. The same reasoning applies to the golf course site
plan review. See Id (slip op at 37).
In the record, the Applicant identified arguments that are impermissible collateral attacks
and the specific issues barred by the rule. The BOCC summarizes collateral attack arguments
and makes findings in Exhibit A, which is incorporated in its entirety into this decision.
Exhibit A also provides reasons the barred issues do not provide a basis for denial on the
merits of the claim raised by opponents. The BOCC adopts Exhibit A as findings that support
approval of the site plan application.
C. Relevant Approval Criteria and FMP Conditions Misstated in Appealed Decision
DCC 18.113.040(C) states:
C. Site Plan Review. Each element or development phase of the destination
resort must receive additional approval through the required site plan review
(DCC 18.114) or subdivision process (DCC Title 17). In addition to findings
satisfying the site plan or subdivision criteria, findings shall be made that the
specific development proposal complies with the standards and criteria of
DCC 1&113 and the FMP.
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File No. 247-19-000881-SP Thornburgh Golf Course Page 5 of 16
The parties and the administrative approval set forth different theories about what is
required to demonstrate compliance with "standards and criteria of DCC 18.113 and the
FMP." The administrative approval includes DCC 18.113.060 and 070 as applicable approval
criteria. The Appellants also regard these sections as approval criteria for the current site
plan review.
The Applicant argued that DCC 18.113.060 and 070 are only applicable criteria for the CMP
and FMP and DCC 18.113.090 is applicable criteria only for the FMP. The BOCC specifically
interprets those aforementioned DCC provisions, and concurs with the Applicant that these
sections are not written to apply during site plan review and do not apply during site plan
review.
The Applicant argues, and the BOCC concurs, that findings of compliance with the conditions
of approval of the FMP, but not the CMP, are required as part of any site plan or tentative
plan approval for the resort. Those findings are made in the administrative approval, as
modified and supplemented herein. The BOCC finds that several of the CMP conditions were
found to be "satisfied" in the FMP decision. These are CMP Conditions 3, 8, 9, 11, 13, 14A,
14B, 15, 24, 30 and 37. Also, Condition 28 was replaced by Conditions 38 and 39 and should
not have been listed as a relevant approval criterion for review of the golf course application.
�Ithough not directly argued by the parties, the BOCC interprets the applicable DCC
provisions and finds that many of the Appellants' arguments related more directly to DCC
18.113.030, which governs ongoing compliance with, and substantial changes to, and
approved CMP.
18.113.080. Procedure for Modification of a Conceptual Master Plan.
Any substantial change, as determined by the Planning Director, proposed to an
approved CMP shall be reviewed in the same manner as the original CMP. An
insubstantial change may be approved by the Planning Director. Substantial change
to an approved CMP, as used in DCC 18.113.080, means an alteration in the type,
scale, location, phasing or other characteristic of the proposed development such
that findings of fact on which the original approval was based would be materially
affected.
To the extent the Appellants in essence argued that that the subject site plan contemplates
a "substantial change" to the approved CMP, the BOCC finds that that Appellants failed to
demonstrate that any such assumed "substantial changes" altered the "type, scale, location,
phasing, or other characteristics of the proposed development" thereby materially affecting
the original findings of fact. Although further not identified as such, any assumed
"insubstantial changes" were in essence previously approved by the Planning Director
Commented[WG11: The Board's previous deliberations did not
be
consistent with DCC 18.113.080through the approval ofthe administrative decision.I
directly address this issue, although it could perhaps reasonably
implied from other issues that were discussed by the Board.
Nevertheless, Staff recommends that the Board specifically address
this issue when reviewing the final decision.
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File No. 247-19-000881-SP Thornburgh Golf Course Page 6 of 16
D. Compliance with FMP Condition 10?
FMP Condition #10 requires:
Applicant shall provide, at the time of tentative plat/site plan approval 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.
As understood by the County, the Appellants claim the decision erred in finding compliance
with FMP Condition #10 because; i) the Applicant has not provided the updated
documentation and accounting required, ii) the Applicant has not secured mitigation water
from Big Falls Ranch with an enforceable contract, iii) any rights the Applicant has to water
and water rights are not secured and available for mitigation, iv) the Applicant's water rights
permit has expired and the extension is not final so there is insufficient water for this
application, and v) the amount of water doesn't include amounts needed for evaporation,
construction, or maintenance.
The BOCC disagrees with Appellants assertions and finds that the Applicant has provided the
updated documentation and accounting required by FMP Condition 10. What is now FMP
Condition #10 was first included in, and carried over from the CMP approved in 2006. By
including the condition as part of the CMP, the BOCC at that time overturned a finding by a
County Hearings Officer stating that "until the applicant demonstrates that it has enough
mitigation credits to mitigate for 942 acre-feet of water (the estimated amount of consumptive
use per OWRD), it is unlikely that the application will be approved" (Hearings Officer's CMP
decision, page 25).
Thornburgh appealed that Hearing Officer's decision to the BOCC arguing that mitigation water
only needed to be provided when the water rights permit dictated, not prior to development of
the entire resort. On appeal, COID manager Steve Johnson argued that:
"The decision rendered by Hearings Officer Anne Corcoran Briggs lost month implies that
the Resort must bring all of the water to the table with the application. This decision, if left
unmodified, will set a precedent that will artificially escalate the competition for water
rights in the basin, and consequently drive the price up, and drive some farmers out. Her
analysis of Water Availability on page 25 expressly conditions approval of the application
on having the credits in hand now. Some of this water will not be needed for many years,
and this policy, if followed, will be a waste of water, against the beneficial use doctrine that
is the pillar of Oregon's water law policy."
The previous BOCC agreed with Thornburgh and COID, and required Thornburgh through
Condition 10 to provide mitigation water when required by the OWRD water right permit.
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File No. 247-19-000881-SP Thornburgh Golf Course Page 7 of 16
The previous BOCC further found that prior to mitigation water being required by the OWRD
water right permit, Thornburgh is only required to show it is not precluded from obtaining
mitigation water as a matter of law. The previous BOCC further found that Thornburgh had
met that standard and had exceeded it by showing it was feasible at that time to obtain
sufficient mitigation water when required by OWRD. (See BOCC CMP Decision, Pgs. 70-
72). The current BOCC agrees with and considers those previous findings as binding on
the subject application.
Although on appeal, the BOCC also agrees with a separate County Hearings Officer's
findings concerning Condition 10 as it related to the Phase A-1 tentative plan application:
"Condition 10 appears primarily to be an informational requirement requiring
documentation of the state water permit and an accounting of mitigation under the water
right." (Hearings Officer's 2018 TP Decision, page 33)
. That second Hearings Officer found that evidence in that record demonstrated that the
resort was in good standing with OWRD, and the Applicant satisfied Condition 10 by
providing an estimate of the amount of mitigation water needed for Phase A-1.
When considering the Phase A-1 tentative plan on remand in 2019, the current BOCC also
interpreted the FWMP to require the Applicant to mitigate the impacts of Phase A-1 before
pumping groundwater to serve Phase A-1. Consistent with the BOCC's decision in Phase A-
1 tentative plan matter, and consistent with what the County's understanding of what will
be required by the OWRD, the BOCC finds that the subject application is contingent only on
an assessment of the water needs associated with approval of the subject site plan. The
BOCC finds that the information provided in the record in this matter and detailed below
relevant to the golf course and lakes sufficiently satisfies Condition 10.
To support the subject application, the Applicant provided updated documentation that
shows Pinnacle Utilities, LLC (Pinnacle) owns water rights permit #G-17036. See Applicant's
Exhibit H-2. This is a permit for a quasi -municipal use of water granted by OWRD for this
project. See Applicant's Exhibit H. On June 24, 2018, Pinnacle submitted an application to
amend its Incremental Development Plan, which was approved on July, 10, 2018. See
Applicant's Exhibit H-3.On April 2, 2018, Pinnacle applied to extend the time to fully develop
the water uses of permit G-17036. On June 5, 2018, OWRD issued a Proposed Final Order
(PFO) approving Pinnacle's extension. See Applicant's Exhibit I.
On July 20, 2018, Gould filed a protest of OWRD's PFO approval and has requested a
contested hearing. That appeal is pending. As understood by the County, permit G-17036
remains in place during the review of the extension unless and until cancelled by OWRD.
See OAR 690-320-0020 (requires OWRD to send a certified letter of intent to cancel a permit,
with 60 days to respond). There is no evidence in the subject record demonstrating that
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OWRD has taken action against permit G-17036, nor does anything in the subject record
demonstrate that OWRD intends to do so. OWRD, instead, advised the County after the
Gould appeal was filed that Pinnacle's water rights permit is in good standing. See
Applicant's Exhibit S. OWRD's Water Rights Information Query states that the status of the
permit is "non -cancelled" See Applicant's Exhibit H-4. Last, again acknowledging that the
matter is on appeal, the BOCC nevertheless notes that our findings in this matter are
consistent LUBA's recent treatment of the issue agreeing with the County Hearings Officer's
findings concerning the Applicant's Phase A-1 tentative plan application.
The Applicant filed a "Mitigation Debit Table," with the County that shows the amount of
mitigation water needed for the subject site plan and the previously approved Phase A-1
tentative plan. See Applicants Exhibit AA. That table also shows the mitigation required at
build -out of the Resort. Approximately 84-acre feet of water rights or 151-acre feet of
mitigation water is needed for the development proposed by the subject site plan and for
uses allowed outright by the Phase A-1 tentative plan.
E. Compliance with FMP Condition 17?
FMP Condition #17 requires:
All development within the proposed resort shall meet all fire protection
requirements of the Redmond Fire Department. Fire protection requirements shall
include all minimum emergency roadway improvements.
As understood by the County, the Appellants argue that heavy excavation, grading and
construction on dry brush increases the fire danger such that the County should require the
installation of fire hydrants at a condition of approval. The Appellants also argue that other
requirements stated in comments filed by the Redmond Fire Marshal must be incorporated
into conditions of approval for this application. Last, the Appellants argue that all the Resort
property has not been annexed into the Redmond Rural Fire District (RRFD), but agree that
the site plan property is annexed into RRFD.
The Applicant responded by submitting documents that show the entire Thornburgh Resort
property was annexed into the RRFD. The Applicant also explained that the CMP made such
annexation a condition of approval, and that the condition was determined to have been
satisfied by the FMP. Further, the Applicant submitted an email from Clara Butler, Redmond
Fire Marshal, clarifying that RRFD doesn't require fire hydrants or access, until such time that
combustible materials for structures are on site. The subject site plan includes neither.
Staffs Administrative Decision determined that a safe environment under DCC 18.124.060(C)
includes fire safety, and found on page 32 of that decision as follows:
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File No. 247-19-000881-SP Thornburgh Golf Course Page 9 of 16
"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 developments compliance with the resorts
Wildfire/Natural Hazard Protection Plan shall be submitted prior to
commencement of construction, earthmoving, or clearing."
The BOCC finds for the reasons above, the application complies with FMP Condition 17
without the cited finding in the administrative decision or the related language in condition
of approval H from the administrative decision to impose such a requirement of the site plan
approval. The email from RRFD resolves concerns about fire safety and DCC 18.124.060(C) is
met as it relates to fire safety. The language quoted above is removed from page 32 of the
appealed decision from page 32 as is the last sentence of Condition of Approval H.
F. Compliance with 18.124.060(B)?
DCC 18.124.060(B) requires:
The landscape and existing topography shall be preserved to the greatest extent
possible, considering development constraints and suitability of the landscape and
topography. Preserved trees and shrubs shall be protected.
The Applicant's Burden of Proof states:
"The golf course is being designed and built with a minimalist philosophy where the
entire design and development process aims to create the minimal amount of
impacts to the natural environment and landscape. This is a key cornerstone of the
resort's minimalist development philosophy, a concept popular 100 years ago.
Fairways will be laid into the natural topography to minimize the earthwork required.
The golf course will adapt and adjust to unique features, like rocks, ledges, valleys,
and unique old growth Juniper trees. It is a given that significant clearing will take
place to accommodate golf play and provide for the safety of the golfers and
employees. Furthermore, the removal of juniper trees is authorized by the Wildlife
Management Plan to reduce water consumption and thereby benefit wildlife. Clearing
will, however, be done with a light touch. Furthermore, minor refinements will be
made during the clearing and construction process to preserve natural features,
trees, and other interesting characteristics the land presents. The lake has been sited
to take advantage of natural topography to minimize the earthwork."
Appellant COLW argued as follows:
"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 plan or else this requirement is meaningless. There must
be a showing of what is to be preserved and how. If preserved trees are to be
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protected, we need to know what the preserved trees and shrubs are in the first
place."
In response the Applicant stated:
"The [A]pplicant provides substantial details in Ex. 46 how this issue was resolved by
the far broader standards of the CMP and FMP, including the WMP/FWMP, the Natural
Characteristics Report (Ex. 42), the Wildlife and Habitat Report (Ex. 43), the Open
Space Management Plan (Ex. 44). Extensive planning and analysis was completed to
comply with the CMP/FMP that meets this standard. Further the [A]pplicant 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 FMP condition #34which deals with the restoration of
disturbed native vegetation. The WMP (Ex. 38 and Ex. P) deals with the timing of when
restoration efforts take place. Additional details are found in Ex. 46: Collateral Attacks,
and in Ex. 48: Comments Chart, Section 13, Pg. 15-16."
Exhibit 46 #13 discusses issues relating to the protection, preservation, enhancement, and
maintenance of natural features, natural characteristics and natural resources that were
previously resolved under CMP approval criteria DCC 18.113.050(B)(1), (4) & (5) and
18.113.070(E). The Applicant claims the CMP approval criteria, which have already been
approved are broader than the requirements of 18.124.060(B). The Applicant submitted
numerous documents from the CMP approval, including; Ex. 42: The Natural Characteristics
and Geology Report from Newton Consultants, Ex. 43: The Wildlife and Habitat report from
Tetra Tech, and; Ex. 44: the Open Space Management Plan that assure compliance with DCC
18.124.060(B).
The BOCC finds that the Appellants' argument that every tree and shrub to be preserved
needs to first be identified and catalogued is unrealistic on a site plan of this size, roughly
100 acres, as it could entail thousands of trees and shrubs. That information, in this case, is
unnecessary to achieve compliance with this criterion. The Applicant has already met the
related requirements of the CMP in 18.113.050 and 070 which are broader than those of
18.124.060(B). The CMP materials consistently state a concerted effort will be made to
minimize the impacts to natural resources, which is carried into this current application, to
protect the landscape and topography. As stated in the application, the golf course and
reservoirs were sited to minimize earthwork to preserve topography to the greatest extent
possible. The fairway lines are significant. The area inside the fairway's lines may be cleared
completely and still achieve compliance with this code criterion because this is typically
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File No. 247-19-000881-SP Thornburgh Golf Course Page 11 of 16
necessary to construct any golf course and because Condition 34 of the FMP authorizes the
removal of native vegetation from the golf course. The applicant has, however, agreed to use
to preserve the landscape and topography within this area, where possible.
The areas outside the fairway lines (improved golf corridor) are covered under Condition #34
which reads.
34. Where construction disturbs native vegetation in open space areas that are to
be retained in substantially natural condition, Applicant shall restore the native
vegetation. This requirement shall not apply to land that is improved for
recreational uses, such as golf courses, hiking or nature trails or equestrian or
bicycle paths.
The WMP prescribes the how, the what, and the when related to such restoration efforts of
disturbed and protected areas and achieves compliance with DCC 18.124.060(B). This
criterion is met.
G. Compliance with DCC 18.124.060(D)
DCC 18.124.060(D) requires:
When appropriate, the site plan shall provide for the special needs of disabled
persons, such as ramps for wheelchairs and Braille signs.
The Appellants argue this resort is open to the public and its recreational assets must meet
ADA criteria for golf carts, including paving golf course paths. The Appellants further argue
that showing the approximate locations of tees, greens, and other golf facilities is not
adequate. Last, the Appellants also make several arguments related to the recreational use
of the lakes, including that the beach areas at the large lake do not show how they will meet
ADA guidelines for use or access, that lifeguards are needed, and that the lakes are to be
used for water skiing.
The Applicant's Exhibit 17, pg. 15, the Guidelines for ADA compliance by the US Access Board
demonstrates that while golf cart passages must be usable for golf carts, they do not need
to have a prepared surface but may be part of a golf cart path. That said, the Applicant stated
that the golf course will be ADA compliant and will provide barrier free access to its facilities,
in accordance with the guidelines provided by the US Access Board. Once the Applicant files
site plans for the golf clubhouse including parking and related facilities, the Applicant will be
required to provide additional details for ADA compliance with those facilities as outlined by
the US Access Board. In relation to the lakes and beaches, the BOCC finds that this
application does not propose, and its decision does not authorize recreational use of the
lakes and beaches.
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File No. 247-19-000881-SP Thornburgh Golf Course Page 12 of 16
The BOCC understands the only recreational use proposed by this site plan is the golf course,
and that the Applicant has committed to adhering to the US Access Board Guidelines detailed
in its Exhibit 17 to comply with ADA requirements for the golf course. The BOCC determines
this criterion is met with those assurances.
IH. Compliance with DCC 18.116.030.1 — — — Commented [WG2]t As understood by county staff, the Board
needs to conclude deliberations on this issue. These proposed
findings are provided only to aid the Board's further deliberations.
The Applicant argued that 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
because no buildings are proposed by the site plan. DCC 18.116.030 requires:
'(O]ff-street parking spaces shall be provided ( on the effective date of DCC Title 18
is changed."
The Appellants argued that because the Applicant has segmented the application process
and only applied for certain elements of Phase A of the resort, the site plan for the golf course
and lakes is incomplete where itfails to address the site plan criteria for the required parking,
walking paths, lighting and structures and facilities for the golf course and lakes. The
Appellants further argue that a condition of approval deferring compliance with these
elements is inappropriate as the code criteria must be satisfied before a site plan for the golf
course can be assessed.
The BOCC finds that no relevant approval criterion requires an applicant to apply for all
development authorized to occur within the first phase of a destination resort at the same
time. In fact, the code clearly contemplates phased construction of improvements within
each resort phase by prohibiting lot sales and the development of single-family homes until
recreational facilities and overnight lodging units have been built or bonded.
The BOCC further interprets DCC 18.116.030, contrary to the Applicant's argument, to specify
at what time parking must be provided for new or enlarged buildings ("...at the time a new
building is hereafter erected or enlarged or the use of building existing..."), but not to
preclude parking requirements for uses that do not involve buildings. Parking must be
provided for uses subject to site plan review and accessed by vehicles, as required by DCC
18.116.030(A). The BOCC finds that provision of such parking would likely be necessary to
make findings of compliance with 18.124.060(C and Q.
However, the BOCC does not support the Appellants' argument and finds that a motor
vehicle parking lot is not required; where, as here, an applicant will not be opening the golf
course for public use until it has developed a parking lot for golfers which it plans to secure
when it files for approval of the golf clubhouse. This site plan approval allows construction
of the golf course only; not use of the course by the general public which will not occur until
after parking has been provided.
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File No. 247-19-000881-SP Thornburgh Golf Course Page 13 of 16
Likewise, bicycle parking spaces are not required because motor vehicle parking spaces are
not required. DCC 18.116.031 requires bicycle parking only for "uses that require off-street
motor vehicle parking:' To the extent that the present decision defers determination of
compliance with parking standards to a later review, the review will be a site plan review that
will provide a full public right to participate, including the right to a hearing.
I. IRebuttai Documents. Commented [WG3]: As understood by County staff, the Board
- - - - -- - - - - - - -- - - needs to conclude deliberations on this issue- These proposed
findings are provided only to aid the Board's further deliberations.
The Applicant claims much of the Appellant Gould's rebuttal materials are new evidence, not
rebuttal evidence as allowed by DCC 22.24.140(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.
(emphasis added). ORS 197.763(6)(c) specifies:
(c) If the hearings authority leaves the record open for additional written
evidence, arguments or testimony, the record shall be left open for at least
seven days. Any participant may file a written request with the local
government for an opportunity to respond to new evidence submitted during
the period the record was left open. If such a request is filed, the hearings
authority shall reopen the record pursuant to subsection (7) of this section.
(emphasis added). Pursuant to both applicable DCC and state statutory provisions, new
evidence must be filed during the first post -hearing comment period and evidence in the
second post -hearing comment period is limited to responses to new evidence filed in the
first post -hearing comment period.
The Applicant argues that improper rebuttal included materials from Anuta, Jeff Kleinman,
Gould, Mel Stout, and Don Barber received during the second post -hearing comment period
that closed on July 8, 2020.
The BOCC finds that specific items the Applicant cites as improper rebuttal from Kleinman,
Gould, Stout and Barber were not responsive to evidence or testimony submitted by
Applicant and are rejected. The Applicant's final argument provided a detailed list of
improper rebuttal evidence. The BOCC concurs with Applicant and incorporates Exhibit B,
which is incorporated in its entirety into this decision, regarding improper rebuttal, including
findings that explain why these arguments, should they be deemed proper rebuttal on
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File No. 247-19-000881-SP Thornburgh Golf Course Page 14 of 16
appeal, are not grounds for denial of the site plan. The BOCC adopts Exhibit B as findings
that support approval of the site plan application.
IV. DECISION
The BOCC finds that the application for approval of the site plan for the golf course and lakes
meets the applicable criterion and hereby affirms the Administrative Decision with the
modifications and clarifications contained herein.
V. Conditions of Approval
The BOCC adopts and restates the conditions of approval from the administrative approval,
with modifications shown in underline and strikethrough.
A. This approval is based upon the application, site plan, specifications, and supporting
documentation submitted by the applicant. Any substantial change in this approved
use will require review through a new land use application.
B. Landscape & Topography Preservation: During construction and as an ongoing
condition of approval, the landscape and existing topography shall be preserved to
the greatest extent possible, considering development constraints and suitability of
the landscape and topography. Preserved trees and shrubs shall be protected.
C. Exterior Lighting: As an ongoing condition of approval, all exterior lighting shall be
shielded so that direct light does not project off site.
D. Road Crossinps: Prior to initiation of use of the golf course, where the walkway
system crosses roads, the walkways must be clearly identifiable through the use of
elevation changes, speed bumps, different paving material, or other similar method.
F nff cr t D ki Prior to of use of the golf course and lakes,the
applicant shall apply for and receive site Plap Review apprGval fOr off street parkiRg
f the nr.lf eGyrrp and laLos;
F. Driveway Access: Prior to initiation of use of the golf course and lakes, the
applicant shall obtain driveway access permits for any new or existing unpermitted
road accesses to Cline Falls Road pursuant to DCC 17.48.210(A).
G. FMP Condition 5: Prior to initiation of use of the golf course and lakes, the
developer will design and construct the road system in accordance with DCC Title 17.
Road improvement plans shall be approved by the Road Department prior to
construction.
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File No. 247-19-000881-sP Thornburgh Golf Course Page 15 of 16
H. FMP Condition 17: All development within the proposed resort shall meet all fire
protection requirements of the Redmond Fire Department (Redmond Fire & Rescue).
Fire pretectiGn requirements shall indi0p a' mipimurn PpAergency roadway
eMeRtS.
I. FMP Condition 29: As an ongoing condition, comply with the ODOT Contribution
Agreement to "assure the applicant's mitigation responsibility to ODOT is met now
and through completion" of the resort.
J. FMP Condition 31: As an ongoing condition, all exterior lighting must comply with
the Deschutes County Covered Outdoor Lighting Ordinance per Section 15.10 of Title
15.
K. CLAD CORGlition 32• The far -'lit a accommodations n e d by DC-C 19.113.060
to 1 f sales, FeRtalor lease OfaRy resideRtial rdwell'n Or Inrc
Dated this _ day of August 2020.
BOARD OF COUNTY
COMMISSIONERS FOR DESCHUTES
COUNTY
Patti Adair, Chair
Anthony DeBone, Vice Chair
Philip G. Henderson, Commissioner
THIS DECISION BECOMES FINAL WHEN MAILED. PARTIES MAYAPPEAL THIS DECISION TO
THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE ON WHICH THIS
DECISION IS FINAL.
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EXHIBIT A: ISSUES BARRED UNDER THEORY OF COLLATERAL ATTACK
Following are the 17 categories of items that opponents raised in this proceeding that were
resolved in the CMP (items 1, 2, 3, 3A, 5, 8, 9, 10, 11, 12, 13, 14, 15, 16 & 17) and FMP (items
4, 6 & 7) and are barred as Improper Collateral Attacks, as described in the Decision, which
generally says that: Issues that were raised and resolved or could have been raised about an
issue during the review of the CMP/FMP may not be raised during subsequent proceedings
including the review of the golf course site plan and should be rejected. Further details of
these "barred" issues can be found on Ex. 48: Applicants Comments Chart, Sections 1-17.
Many of Opponents claims in this and past proceedings, including all of the claims listed in
#1-5 below relate to water, that it is not available, that Applicant does not have it, cannot use
it, or that it is not adequate in some way. The 2008 Hearing Officer found the OWRD water
rights process is the only way to determine whether mitigation water is returned to the
streams. The Board concurs, finding, save for the limited role afforded the County by
Condition 10 and the FWMP, that the OWRD is the authority which governs the Resorts water
use and mitigation. And, that it is OWRD, and not the County that will administer and monitor
whether the Resort has adequate water, including mitigation water for the Resorts
development going forward. In spite of the limited role the County has, the following issues
are the "water" issues Opponents raise here:
1. Availability of Water - CMP: 18.113.070(K) reads, in part:
Adequate water will be available for all proposed uses at the resort, based upon the
water study and a proposed water conservation plan. Water use will not reduce the
availability of water in the water impact areas identified in the water study considering
existing uses and potential development previously approved in the area.
The Board finds issues related to water ava i labi I ity for all the Resorts proposed uses are CMP
criterion resolved by approval of the CMP. Any further attack is an impermissible collateral
attack. Because the Applicant is using water for an approved use and is not proposing
changes to the prior approvals, no further actions are required by the County to comply with
this settled issue. The Board finds the Opponents claims are not applicable to any relevant
site plan approval criteria. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims regarding water availability include:
a. Water availability has not been proven.
b. The applicant's assets, including water rights, are secured for loans.
c. A lake by definition is filled with water.
d. The Resort does not have the water to fill the lakes, water the ground, or provide
the needed fire flow.
e. The amount of water needed for the lakes may not be correct.
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File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT Page 1 of 22
f. CMP Studies finding no impact on neighboring wells are false, the water table is
dropping, our wells will be impacted, occupancy rates will increase usage.
g. Watering a golf course is a waste of the resource, and the area does not have
enough water for this use.
h. The golf course, the lakes, and the water for them as well as their construction
and maintenance, was not approved in earlier proceedings.
i. Any issue related to water is not a collateral attack.
i. The decision was flawed to find compliance with 18.113.070(K).
Issues raised by: N. Gould, N. Engebretson, Ambers, P. Geiser, D. Stout, P. Lipscomb,
COLW, G. Burton, H. Lonsdale, M. Saslow, and J. Kleinman.
The Applicant responded:
18.113.070(K) required the water study to obtain approval of the CMP which needed
to include water for all proposed uses at the resort. The CMP application (and water
study) and the resulting approval included 3 golf courses plus ancillary golf facilities,
up to 77 acres of lakes, along with the maintenance, evaporation, and construction
needs of the resort (See Ex. 30, Board CMP Dec., Pgs. 5-9). In the 2006 CMP
proceedings the Board found the resort's source of water is ground water from the
regional aquifer and that the applicant submitted the required water study which
demonstrated that adequate water is available for the entire Thornburgh Resort
project. Applicant also submitted a copy of its application to OWRD and a letter from
Dwight French, OWRD to the record of the CMP, confirming that ground water was
available for the protect, and that, the proposed use of ground water from new wells
was not expected to interfere with other existing ground water uses. The Board noted
the OWRD conclusions were "supported by conclusions reached in the Water
Study submitted by Applicant, and in the report prepared by Eco: Logic on
behalf of the project opponents." The Board added that "[b]ased on this
information, Applicant demonstrated that ground water is available...:' and "the
water availability standard has been satisfied by the Applicant." See Ex. 30, CMP
Board Pg. 23. Also, Opponents has not cited to relevant approval criterion and that
the claims are not relevant to the approval of this site plan.
While no further evidence or argument is needed for this site plan approval for these issues,
the Board finds that Applicant has met the standard. The evidence shows the uses proposed
by this site plan were previously approved, that Applicant has provided an accounting of the
water required for the proposed and approved uses including the water needed for the
maintenance and evaporation of the lakes which is based on amounts from the water study,
the total water demand is less than the 2,129 acre-feet the Applicant is permitted to pump.
See Ex. AA. Further, Jan Neuman, Applicant's water rights counsel states Applicant has
hundreds of acres of water rights the resort could use for the project. See Applicants Ex. O,
& Ex. 18, Neuman Letters.
2. Availability of Mitigation Water - CMP. 18.113.070(K).
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The Board finds the issues related to availability of mitigation water for all the Resort's
proposed uses are CMP criteria that were resolved by approval of the CMP. Any further
attack on them is an impermissible collateral attack on the CMP. Because the Applicant is
using water for an approved use that is not proposing any change to the prior approvals, no
further actions are required by the Applicant to comply with this settled issue. Further, the
Board finds that the Opponent claims are not applicable to any relevant site plan approval
criteria. As it is conceivable these findings will be challenged on appeal, the Board has also
addressed and resolved the arguments raised on their merits below.
Opponent claims regarding the availability of mitigation water include:
a) The 2007 Big Falls Ranch (BFR) agreement was revoked, and Applicant refuses to
show the new agreement with BFR.
b) The applicant's assets, including any alleged mitigation water is secured for loans.
c) The applicant does not have mitigation water now, it has not registered mitigation
water with OWRD.
d) Applicant only has temporary mitigation credits.
Issues raised by: N. Gould, COLW, D. Arnold.
The Applicant responded:
The claims that "applicant needs to have mitigation water to obtain land use
approvals, or that it has not shown mitigation water is available" were made and
resolved numerous times, beginning 15 years ago with the approval of the CMP in
front of the Hearing Officer. Then applicant provided information mitigation water
was available for purchase from numerous sources including Big Falls Ranch,
Deschutes Resource Conservancy, COID and the McCabe Trust. Applicant provided a
Memorandum of Agreement evidencing its Option to purchase water from Big Falls
Ranch but did not provide the agreement itself. Gould argued applicant was required
to provide copies of the actual agreements it had for mitigation water. The Board, in
its 2006 decision denied Gould's claim, noting this was a bigger policy question; "The
question before the Board [Board] is whether, in order to demonstrate that
water is "available" under the county standard, an Applicant must provide
evidence of actual mitigation credits at the time of county review, or whether
it is sufficient to demonstrate that it is feasible for Applicant to obtain sufficient
credits by the time the credits are ultimately required under the OWRD water
right process." See Ex. 30, Board CMP Dec. Excerpts, Pg. 24
In determining the county's standard the Board looked to LUBA's Bouman v.,Jackson
County, 23 Or LUBA 628, 647, decision and interpreted the County standard to require
no more than what Bouman required, namely that a decision approving the
application simply requires that there be substantial evidence in the record that
Applicant is not precluded from obtaining the required mitigation [water rights
permits]. The Board went on to say that: "even if the standard were interpreted to
require more it certainly would require no more than a showing that the
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acquisition of the necessary mitigation credits is feasible. Such a showing can
include evidence that mitigation water is generally available in the basin and
that the Applicant has a reasonable plan for acquiring mitigation from available
sources." See Ex. 30, Board CMP Dec. Excerpts, Pg. 24. The Board approved the CMP
because Thornburgh had made both showings; settling the issue of whether
mitigation water is available for the Resort's use and that it had a reasonable plan.
The issue of whether a mitigation purchase agreement must be provided to the
County was specifically addressed and resolved against Gould. Gould argued "that
Applicant is required to provide copies of the option or purchase agreements
described by Applicant in materials filed with OWRD and the County." In
response, the Board said "the Board disagrees such documentation is required.....
the evidence that mitigation water will be available is overwhelming without
the need to have copies of the actual option or purchase agreements in the
record." The Board concluded Applicant easily met the required standard noting
Applicant's evidence of the option agreement with Big Falls, which was confirmed by
Rex Barber, President of BFR See Ex. 30, Board 2006 CMP Dec. Excerpts, Pg. 27.
The Board finds the evidence shows the Applicant has met the standard to show it has the
mitigation water available that it will need to mitigate for the amount of water required when
needed for this site plan. The Applicant provided a current recorded Memorandum of
Agreement evidencing its purchase contract (not Option agreement) with Big Falls Ranch (See
App. Ex. T, Memorandum of Agreement with BFR). Applicant's water counsel Jan Neuman
verified the MOA's existence, and that it was for far more water than is needed for all of the
resorts Phase A water mitigation needs, which was also confirmed by Rex Barber, President
of BFR, and Liz Fancher, Applicant's land use counsel. See App. Ex. U-2, Neuman Letter
9/24/18, App. Ex. 19, Liz Fancher memo.
3. CMP Condition 10: This condition states:
10. 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.
The Board finds the issues related to the interpretation of Condition 10 was resolved by
approval of the CMP and any attack on Condition 10 is an impermissible collateral attack on
the CMP. Because the Applicant is using water for an approved use that is not proposing any
change to the prior approvals no further actions are required by the County to comply with
this settled issue. Further the Board finds that the Opponents claims b-d below are not
applicable to any relevant site plan approval criteria. As it is conceivable these findings will
be challenged on appeal, the Board has also addressed and resolved the arguments raised
on their merits below.
Opponent claims include:
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a) The application has not provided the required documentation.
b) The decision erred in finding compliance with Condition 10 because the applicant
has not shown it has an enforceable contract with BFR.
c) The applicants permit is expired, Gould protested extension, Applicant had no
beneficial use, filed extension late, can not pump any water, the record changed,
and has no water for fire safety.
d) Applicant is seeking to delay compliance with the condition.
Issued raised by N. Gould and COLW.
The Applicant responded:
Condition #10 was made a condition of approval bythe Board of County Commissioners
when it approved the CMP in 2006. It overturned a finding by Hearings Officer Briggs
that said "until the applicant demonstrates that it has enough mitigation credits to
mitigate for 942 acre-feet of water (the estimated amount of consumptive use per
OWRD), it is unlikely that the application will be approved." See Exhibit J, page 25 of the
CMP decision. Thornburgh appealed Hearing Officer Briggs' decision to the Board
arguing that mitigation water only needed to be provided when the water rights permit
dictated; not prior to development of the entire resort. As explained by Steve Johnson,
COID Manager:
"The decision rendered by Hearings Officer Anne Corcoran Briggs last month
implies that the Resort must bring all of the water to the table with the
application. This decision, if left unmodified, will set a precedent that will
artificially escalate the competition for water rights in the basin, and
consequently drive the price up, and drive some farmers out. Her analysis of
Water Availability on page 25 expressly conditions approval of the application
on having the credits in hand now. Some of this water will not be needed for
many years, and this policy, if followed, will be a waste of water, against the
beneficial use doctrine that is the pillar of Oregon's water law policy." See
Exhibit K.
The Board agreed with the Resort. In reaching this decision, the Board found that
Thornburgh needed to provide mitigation water when required by the OWRD water
right permit and prior to that time it is only necessary for the Resort to show it is not
precluded from obtaining mitigation water as a matter of law. The Board found
Thornburgh exceeded this standard by showing it is feasible for it to obtain
sufficient mitigation water when required by OWRD. See Board CMP Decision Pgs.
70-72, Exhibit L. The Board imposed Condition 10 as a condition of approval of the
CMP to insure it provided an accounting of the mitigation water needed for each
phase of development. Hearing Officer Olsen, in the Phase A-1 tentative plan decision,
explained Condition 10's requirements as follows:
"Condition 10 appears primarily to be an informational requirement
requiring documentation of the state water permit and an accounting
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of mitigation under the water right."
Hearing Officer Olsen was correct in what Condition 10 requires. It is an informational
condition requiring updating the documentation of the water permit and providing
an accounting of the amount of mitigation needed under the water permit for each
phase of development. Opponents are attempting to expand the scope of what
Condition 10 requires. The time to have done so was during the CMP proceedings.
They cannot come back and make a belated claim to amend an approval made 14
years ago. To do so is a collateral attack on the CMP and any change to the intent of
Condition 10 should be rejected.
The Board agrees this was resolved in the CMP with an intent consistent with Hearing Officer
Olsen's interpretation, that it is an "informational requirement". The language of Condition
10 requires "updated documentation of the state water right permit". It does not require that
the documentation show any particular status, for example; that the permit is free of protest,
or the extension is pending. It just requires updated documentation which the Applicant
provided. It shows the Applicant has a water rights permit, that the permit has not been
cancelled, and that it is in good standing. Condition 10 does not require the Applicant to
provide an agreement, or any form of proof of an agreement or contract for mitigation water.
It just requires Applicant to provide an accounting of the mitigation water for the uses in this
site plan. Opponent attempts to expand the scope beyond that is a collateral attack on the
CMP.
3A.Need Reservoir Permit.
The Board finds that opponents raising the issue at this stage is an impermissible collateral
attack on the CMP and the Water Rights permit process. It is also improper rebuttal, (See Liz
Fancher July 15, 2020 response to Anuta letter and Ex. 47). It is also not relevant to any site
plan approval criterion.
Opponent Gould claims Applicant needs a reservoir permit to hold water in its lake.
The applicant responded:
The reservoir permit issue is one that should have been raised during the review of
the CMP; not during review of the golf course/lake site plan when it is an
impermissible collateral attack on the CMP. CMP criterion DCC 18.113.070(K) required
the Resort to demonstrate "adequate water will be available for all proposed uses at
the destination resort."
The Board finds that, at no submission from OWRD has ever suggested such a reservoir
permit was needed. To the contrary, the Resorts water rights permit explicitly authorizes
year-round use for:
"QUASI -MUNICIPAL USES, INCLUDING IRRIGATION OF GOLF COURSES AND
COMMERCIAL AREAS, AND MAINTENANCE OF RESERVOIRS."
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In this site plan and the prior Phase A-1 proceedings OWRD stated multiple times that
Applicant has a water rights permit G-17036 for the proposed Project that is in good
standing. In this for the golf course and lakes OWRD confirmed that Applicant only needed
to provide mitigation water in order to pump water for these uses. Further details on the
merits are included in the Decision.
4. Availability of Mitigation Water & Adequacy of BFR Water - FMP-18.113.070(D).
As noted above the Board found the issues related to availability of mitigation water for all
the Resorts proposed uses are CMP criterion that were resolved by approval of the CMP.
Issues related to the Availability and Adequacy of the Big Falls Ranch water was resolved with
the approval of the Fish and Wildlife Mitigation Plan (FWMP) during the FMP proceedings.
Any attack on them is an impermissible collateral attack on the prior approvals. The Board
also finds that the Opponent claims are not applicable to any relevant site plan approval
criteria. As it is conceivable these findings will be challenged on appeal, the Board has also
addressed and resolved the arguments raised on their merits below.
Opponent claims include:
a. The BFR water is pledged as security for other uses.
b. The flow of Deep Canyon Creek needs to be measured,
c. It's unclear whether the BFR water is "paper" water or "wet" water,
d. The COID water is not included as mitigation water, and;
e. BFR transferred the point of appropriation of its water rights.
Issues raised by Y. Lind, COLW, J. Kleinman, N. Gould
The Applicant responded:
The issue of the availability of mitigation water was conclusively resolved in the CMP.
Nothing further was required for the FMP. The FMP did not require the applicant to
verify or re -certify the finding of the CMP that mitigation water was available for use
in the FWMP.
During the review of the FWMP, the applicant provided additional information to
show that water from Big Falls Ranch would be used to provide thermal mitigation
and that it was feasible for the Resort's water supplier to obtain this particular cold
mitigation water to meet the no net loss standard of DCC 18.113.070.D. During the
FMP proceedings, Gould raised issues related to availability and the adequacy of BFR
water including:
A. BFR Water is already pledged for other purposes and is not available for
mitigation.
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B. BFR transferred some of their water rights within their property it's hard to
substantiate them. It appears the BFR water right are not what Thornburgh says.
C. The acquisition of water rights is not evidence that water will actually be returned
to the rivers and streams as alleged as water rights are merely paper
representations of water quantities.
The hearings officer disagreed, denying Gould's arguments, and approving the FMP
without any condition requiring any proof then, or in the future, that: i) the BFR water
rights were not pledged or secured elsewhere; and ii) there is no requirement that
Deep Canyon Creek flow be subsequently measured or confirmed. She also
determined the OWRD water rights process is the only way to ensure actual
mitigation water is returned to the streams. See Ex. 21, 2008 Hearing Officer Dec. Pg.
23-24, Ex. 25: Gould 3rd Memo, Pg. 4, with Crocker attachment.
Gould appealed to LUBA arguing while the hearing officer noted there was substantial
evidence that Thornburgh had the right to use BFR water, "the Hearing Officer
provided no condition of approval actually requiring that the necessary water
be returned to Deep Canyon Creek or finding that it was feasible to do so." LUBA
denied the claim, noting that "Thornburgh responds that the Fish WMP and the
August 11, 2008 letter to the hearings officer make it clear that Thornburgh is
obligated to mitigate by acquiring the Big Falls Ranch water rights and
returning that water to Deep Canyon Creek." LUBA concluded: "We agree with
Thornburgh."
Gould questioned: "whether the COID water would be available" arguing "the
Hearings Officer made no finding of feasibility and did not include a condition
of approval requiring that proposed mitigation water actually be available and
used." On this issue LUBA stated: "Thornburgh responds, and we agree, that the
issue of the feasibility of acquiring water rights from COID if necessary was
resolved in our decision in Gould I (the appeal of the CMP)." See Ex. 31 FMP Appeal,
Pgs. 3-7.
Gould appealed LUBA's decision to the Court of Appeals. Specifically, in her 2nd
assignment of error, Gould argued:
1. "Actual mitigation from Big Falls Ranch is not required,"
2. "No condition requires actual mitigation by Central Oregon Irrigation
District water,"
3. LUBA erred when it found the COID mitigation water "does not necessarily
offset thermal impacts on fish associated with the requirements of DCC
18.113.070(D), and;
4. A general condition only requiring compliance with OWRD rules is not
sufficient."
Gould argued that condition 10 only requires the applicant comply with water laws
administered by OWRD. And that a "condition of approval on water quantity does
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not obviate the need for a condition on water quality." Gould asked the Court to
add further conditions of approval. See Ex. 31. FMP Appeals Excerpts, Pg. 14. The COA
denied Gould's claims, did not require any further conditions, and found that LUBA
did not err in simply requiring compliance with the FWMP. Gould v. Deschutes County,
233 Or App 623, 635, 227 P3d 758, 765 (2010). Compliance with the FWMP is assured
by Condition 38 of the FMP and its program of annual monitoring. As long as a
proposed development application does not alter the FWMP, the FWMP is not
relevant in the review of a site plan or tentative plan application.
LUBA affirmed this in 2019 during the Tentative Plan appeal stating:
"FMP Condition 38 requires intervenor to "abide by the April 2008 Wildlife
Mitigation Plan, the August2008 Supplement, and agreements with the BLM
and ODFW for management of off -site mitigation efforts(,] and "submit an
annual report to the county detailing mitigation activities that have
occurred over the previous year. * * *
As established in prior appeals, the mitigation plan satisfies the substantive
no net loss/degradation standard for destination resort development. We
agree with intervenor [Central Land] that the details of the mitigation plan
are established by the FMP, and compliance (or noncompliance) with the
mitigation measures will be established by annual reporting required by
FMP Condition 38. We reject petitioner's argument that the FMP required
intervenor to ,fill in the details'to obtain approval of a tentative plan during
phased development."
Gould v. Deschutes County, _ Or LUBA _ (LUBA No. 2018-140, June 21, 2019,
Slip Opinion p. 37). Also Ex. G. LUBA TIP Dec.
As noted above, the applicant is required to comply with the terms of the FWMP.
Compliance with the FWMP is assured by the annual reporting of mitigation that
OWRD and the WMP requires applicant to complete. LUBA makes clear the Applicant
is not required to do anything further to comply with the FWMP in order to obtain
further development approvals. The constant barrage of frivolous claims regarding
this issue are barred by the CMP, the FMP, and the FWMP. They should be disregarded
and denied outright.
Opponents have again raised the issue of BFR's transfer of its water rights internally,
claiming now, and in the TIP that the transfer of the point of appropriation from Deep
Canyon Creek to groundwater wells on their property made the water unavailable for
mitigation. As overwhelming evidence shows, this is false and should be disregarded.
The BFR rights are still surface water rights, BFR still owns them, and they are still
available for mitigation. See Kyle Gorman, OWRD District Manager email July 1, 2020,
Ex. 23: email from Sarah Henderson, OWRD, Ex. U-2: Jan Neuman Letter. 9/24/19, Ex.
19: Liz Fancher memo, Ex. 20 K. DeLashmutt arguments.
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The Board finds that the evidence and testimony Applicant has submitted shows BFR water
is available, which is adequate. Further, issues related to the Big Falls water were resolved
by the approval of the FWMP/FMP. Compliance with the FWMP is accomplished via the
annual reporting required in the FWMP/WMP. The Board finds the applicant is not proposing
any change to the FWMP/FMP and that no further actions are required to comply at this time.
5. Applicant Impaired Its Ability to Use Its Water with Liens on Its Assets.
The Board finds this is a claim on the Availability of Water, which as noted in #1 above is a
CMP criterion 18.113.070(K) that was resolved in the CMP. Gould's failure to raise it then
does not allow the argument to be made now, as it is a collateral attack on the CMP. The
Board also finds that the Opponent claims are not applicable to any relevant site plan
approval criteria. As it is conceivable these findings will be challenged on appeal, the Board
has also addressed and resolved the arguments raised on their merits below.
Opponent Gould claims because applicant has pledged its assets as security for loans it
cannot use it water rights and other assets to provide mitigation as required.
The Applicant responded:
This is a sideways, and belated attack on the issue of water availability resolved by
the CMP years after the approval was granted. The time to have addressed those
issues was during the review of those plans. Gould's failure to raise the issue at the
appropriate time does not allow it to be visited now. Also, as noted in letter from Jan
Neuman, Applicant's water attorney, it is routine for development projects of this
scale to have loans secured by project assets which is supported by evidence Mr.
Del-ashmutt provide in rebuttal that at the time of the FMP approval Applicant had
roughly $23 Million in debt that was secured by the project assets. Certainly, if that
was an issue, it should have been raised then. The failure to do so is a collateral attack
on those prior approvals and should be denied outright.
The Board finds that it is routine for developers and certainly large development projects to
have loans secured by the project assets, and that those loans do not preclude the use of
the project assets for the benefit of the project. Further, at the time of previous approvals
the evidence shows the project had far larger debt, that logically should have been of greater
concern, but it was not raised. This claim is not grounds for denial of this site plan.
6. Removal of Deep Canyon Creek Dams- FWMP /FMP-18.113.070(D). Condition #38.
The Board finds this criterion was resolved with the approval of the FWMP in the FMP
proceedings. The Applicant is not proposing any change to the FWMP and as such this is a
collateral attack on the FMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include:
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a. The impoundments are still there.
b. The head gate is out but the concrete weir is still there.
c. Pictures shows water being impounded.
d. The impoundments are not adequately addressed.
e. Applicant will destroy Beaver Habitat when it removes the dams.
Issues raised by COLW, D. Arnold, S. Dorsey.
The Applicant responded:
Discussion about the removal of two dams on Deep Canyon Creek began in 2008
when the Resort agreed to that it would remove them. As above, compliance with the
FWMP is assured by the annual reporting of mitigation. LUBA's 2019 decision in Gould
vs. Deschutes Countyfound the removal of the dams on Deep Canyon Creek is required
by the FMP and is not relevant to the review of the tentative plan because the TP did
not alter the FWMP. The same is true of this site plan. See Ex. 8, Liz Fancher letter.
The applicant is not required to fill in the details or provide anything further at this
point to comply with this element of the FWMP. Opponents' claims relating to the
removal of either dam or the impounding of water are collateral attacks on the FWMP
and should be disregarded and denied outright, including Gould's most recent claim
related to the beaver habitat. Concerns regarding compliance with the FWMP are
properly resolved by the annual review called for by FMP Condition 38.
Furthermore, David Newton, Newton Consultants Inc., the author of the FWMP, has
explained the required timing of the dam removal required by the FWMP (See Ex. Q,
Pgs. 10-11). It requires the first dam (the upper beaver dam) to be removed prior to
the start of construction, and the second dam (the head gate along with the BFR
concrete impoundment) is to be removed once the Applicant's pumping exceeds
1,201 acre-feet. At this time, removal of neither dam is required. That being said, the
evidence clearly shows BFR has removed the head gate on its impoundment, allowing
water to flow through their property to the Deschutes River, years before required by
the FWMP and even before Applicant has pumped any water whatsoever. Aside from
providing mitigation far in advance of when needed under the FWMP, the Applicant
is not changing any terms of the FWMP and will assure compliance with its annual
reporting as required.
The Board finds the Applicant is not proposing any change to the FWMP, which calls for the
dams to be removed at points in the future. Further, that while not required at this point,
before it begins any pumping that the Applicant has caused the cessation of pumping of the
Deep Canyon Creek water and the removal of the head gate which impounded the water in
the Big Falls pond, allowing the Deep Canyon Creek water to flow to the river, subject to the
constraints the Beavers reinstall. At this point the Applicant has done more than is required
by the FWMP.
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7. Mitigation of Impacts to Wildlife & the Old Tumalo Canal area (ACEC) -
(18.113.070(D).
The Board finds these issues are CMP/FMP approval criterion resolved with approval of the
Wildlife Mitigation Plan (WMP) and the FMP. Further attacks are impermissible collateral
attacks on the CMP/FMP. Also, that issues a-f are not relevant site plan approval criterion. As
it is conceivable these findings will be challenged on appeal, the Board has also addressed
and resolved the arguments raised on their merits below.
Opponent claims include:
a. How is the resort planning to mitigate damage to the eco-system?
b. The decision erred in finding compliance with Condition 38,
c. Opponents disagree the impact is net zero,
d. A new 2020 study needs to be done,
e. Proximity to Golden Eagle nest, must take extra measures in addition to WMP,
f. The applicant has not dealt with the Tumalo Canal area of concern, and;
g. The site plan needs to address rock outcrops affected by the golf course.
Issues raised by M. Saslow, N. Gould,
The Applicant responded:
Mitigation of impacts to Wildlife were approved in the FMP by the WMP. Included in
that is mitigation to wildlife both on and offsite. The WMP deals with the Tumalo canal
irrigation ACEC, as well as the locations of the rock outcrops. Condition 38 requires
compliance with the FMP and WMP, which included care for the Tumalo Canal and
rock outcrops. Applicant is not proposing any change any change to the terms of the
WMP. In accordance with the WMP the site plan address rock outcrops and the
impacts to them. Further compliance with the WMP is determined by the annual
monitoring the plan requires. Applicant is not required to fill in the details or provide
anything further to meet this criterion. See LUBA pg. 9 above, and Ex. G, LUBA
Decision. Any further claim is a collateral attack on the CMP/FMP. Also Claims a-f are
not relevant approval criterion.
The Board finds that LUBA has held that the WMP/FWMP, when followed, fully mitigates for
the impacts to fish and wildlife. The Applicant is not proposing any change to the WMP, and
that compliance with the WMP is accomplished via the annual reporting in the WMP. Also,
Applicant's SP 3.1 shows the rock outcrops that may be impacted. This standard is met.
8. Economics - CMP-18.113.070(C) (1-4) & 18.113.050(B)(19).
The Board finds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. Further they are not relevant site plan criterion. As it is
conceivable these findings will be challenged on appeal, the Board has also addressed and
resolved the arguments raised on their merits below.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 12 of 22
Opponents Claims include:
a. 2005 economic data is not viable.
b. Golf course and lakes are not viable. We do not need more golf.
c. Thornburgh should be required to enter into an agreement to use Eagle Crest golf
courses.
d. We do not need another resort. There is too much competition for same customer
base.
e. job's and taxes should not be determining factors.
f. Where is the affordable housing for workers who maintain the project?
Issues raised by P. Lipscomb, N. Engebretson, Saslow, Deborah, C. Larsen, L. Bakewell,
M. Saslow.
The Applicant responded:
Any issue related to viability of the golf course, the need for golf or other amenities,
or the resort as a whole has been resolved in the CMP. The issue of siting golf in the
Thornburgh Resort was resolved in the CMP. All issues related to the economic
viability, the economic benefits the resort produces, and availability of affordable
housing were resolved in the CMP. Further they are not criterion for approval of this
site plan. There is no requirement for the applicant to provide any information on any
element regarding the same. Similarly, there is certainly no code requirement that we
enter into an agreement with any competitor. All of these issues are barred as
impermissible collateral attacks on the CMP and should be rejected outright.
While applicant is not required to do so, it will respond to the allegations as follows.
The evidence shows Thornburgh is hugely viable, that it will provide tremendous
economic benefits to the local economy. Economic benefits, including the creation of
jobs and tax revenue was a criterion for approval of the CMP. In compliance with the
CMP requirements stated in 18.113.070(C)(3) applicant retained Peterson Associates
to undertake a complete economic study. The results showed the project would; 1)
create an average of 1,355 direct and indirect jobs annually for the first 12 years, 2)
produce nearly $19M in annual tax revenue at stabilization, making Thornburgh the
2nd highest paying taxpayer in the county and: 3) create little demand for public
services resulting in massive benefit to public agencies. For example, annual tax
payments directed to public schools would be about $7.4M while the cost of
educating the few resort kids would only be about $340,000, an annual surplus of
about $7M.
In the 2006 CMP decision (Ex. 30) the Board found that "even with the loss of resource
lands the economic benefit the resort produces will provide an overwhelming benefit
to the county." As to affordable housing Peterson prepared a comprehensive
housing analysis in 2005 as part of the CMP approval 18.113.070(C)(3), which the
Board found acceptable, stating that it was a 'substantial report'. Ex. 30, Pg. 16-17,
Board CMP Dec.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 13 of 22
In the 2018 Tentative Plan proceedings opponents raised similar concerns to those
being raised here, i.e.: golf, economics, viability, etc. To address those concerns
Applicant asked Peterson Economics to respond. Peterson noted; "Thornburgh will
have an exceptional golf course designed by Coore-Crenshaw - clearly one of the
very best "big name" designers, known for designing some of the very finest
golf courses on the planet." In response to a comment that Thornburgh lands are
not very good for a resort, Peterson opined, that "this could be the very best
development parcel remaining in the Northwest". In response to the proximity to
Eagle Crest Peterson stated, that "although situated near Eagle Crest, Thornburgh
would be positioned to serve a very different segment of the market. As such it
would have little to no overlap....." Lastly referring to comments that things have
changed since 2005 Peterson referred to a detailed financial analysis his firm did in
June 2018. At that time Peterson concluded "Thornburgh offers potential to
generate very attractive net cash flow going forward exceeding $410 million in
cumulative cash flow...." In their June 2018 analysis Peterson points to a huge and
expanding customer base, dispelling Lipscomb's implications of a static or stagnate
customer base. See, Attachments 2, 3 and Exhibit 30, Pgs. 15-17.
The Board finds that based on the 2005 evidence and the evidence and expert testimony
Applicant submitted for this site plan, that the Resort is viable, and will provide substantial
economic benefits for Deschutes County.
9. Drainage - CMP 18.113.0700): CMP Condition 25.
The Board finds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include:
a. It's not clear no natural drainages have been identified on the CMP/FMP.
b. The decision erred in finding compliance with 18.113.070a).
Issue raised by J. Kleinman, N. Gould.
The Applicant responded:
The CMP established the drainage plans for the Resort which satisfied 18.113.070a),
and which are being adhered to in this site plan. Condition 25 required the filing of a
detailed erosion plan with the first tentative plan, which was done. That same erosion
plan was filed again with this site plan. Condition 25 is a filing requirement. It imposes
no performance standard for the plan, other than it be detailed. It is detailed and has
been filed. The Applicant is complying with the CMP conditions and any claim is a
collateral attack on the CMP. See Ex. 8, TP Erosion Control Plan.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT Page 14 of 22
The Board finds that Applicant complied with this criterion by complying with Condition 25
which required that it file the Erosion Control plan with the initial tentative plan (or site plan,
whichever is first). The Erosion Control Plan was accepted by Hearing Officer Olsen. In this
site plan, the entrance road is the only element surface drainage occur, so the Applicant filed
the Erosion Control Plan with this application. This standard is met.
10. Waste -Water Disposal-18.113.070(L): CMP Condition 15.
The Board finds this issue is a CMP criterion that was resolved in the CMP and is a collateral
attack on the CMP. Further it is not a relevant site plan criterion. As it is conceivable these
findings will be challenged on appeal, the Board has also addressed and resolved the
arguments raised on their merits below.
Opponent claims the plan does not comply with 18.113.070(L) that its wastewater disposal
plan includes the maximum beneficial use.
The Applicant responded:
The site plan does not require waste -water disposal. Further 18.113.070(L) was met
by approval of the CMP (See Ex. 30, Board CMP Dec. Pg. 28.) and is no longer an issue
unless the applicant is proposing a change to the waste -water system - which it is not.
The applicant has a Water Pollution Control Facility permit as required by Condition
#15 which was met prior to the submittal of the FMP. Any further attack is a collateral
attack on the CMP/FMP.
The Board finds the Applicant has satisfied Condition 15 by obtaining a Water Pollution
Control Facility permit. This site plan is not proposing any facilities requiring waste -water
disposal so maximum beneficial use is an irrelevant issue. Nothing further is required now.
11. Traffic and Access - DCC 18.113.050(B)(2) & DCC 18.113.070(G): CMP Conditions 4 &
29.
The Board finds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include:
a. Traffic counts are woefully low.
b. Taxpayers are being asked to pay for a roundabout at Cook Avenue.
c. How does a 2007 Traffic approval work now?
d. The Board should require the Cooperative Improvement Agreement with ODOT
to be recorded.
e. Although Northern access is not included the Tentative Plan drawings show
grades over 10% that are maximum allowed by Redmond Fire.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 15 of 22
f. Redmond Fire requires southern road to be built now but applicant has no access
permit.
g. The BLM requires extra things over county. No condition of approval requires
compliance with BLM.
Issues raised by N. Gould, C. Larson, L. Bakewell.
The Applicant responded:
DCC 18.113.050 & 070 are CMP criterion that were met with approval of the CMP and
are collateral attacks. Applicant has done all that was required in the CMP. The
applicant provided a traffic report compiled by a professional traffic engineer which
was accepted as valid by Deschutes County Road Department, ODOT and the Board.
The report became the basis for negotiations with ODOT for the execution of the
MOU (See Ex. 34, ODOT MOU), compliance with which, the Board made a condition
of approval (#29) of the CMP. See. Ex. 30, Board CMP Dec, Pgs. 12, 18-22, 32. Further
the applicant entered into a Right of way (ROW) agreement with the BLM pursuant to
condition #4.
In compliance with the terms of the MOU, Thornburgh subsequently entered into a
Cooperative Improvement Agreement (CIA) with ODOT. The CIA spells out the terms
of Thornburgh's $1,125,000 contribution to the construction of the Cook Avenue
roundabout. The CIA has no provision requiring it to be recorded. See Ex. 0, CIA
w/ODOT. Further, this claim is not a criterion for approval of this site plan. Lastly,
according to Chris Clemow, Professional Engineer, the background traffic at relevant
intersections was lower than was estimated to have occurred at similar times in the
2007 traffic study. See Ex. 35, Clemow Letter, Pg. 6.
Comments regarding the north and south roads were governed by the imposition of
condition #4, requiring secondary access roads to be built prior to final plat approval
or building permits, whichever comes first. This is further clarified and conditioned by
CMP Condition #17 which requires that all development meet the requirements of
Redmond Fire Department, including ingress and egress to the site. Redmond Fire
provided an email, Ex. 16 that stated no water or access is required until combustible
materials are arriving on site for a structure. This site plan is not a final plat approval,
or require issuance of a building permit, and will not result in the delivery of
combustible materials for a structure. As such no road or water is required. Further
Ex. 28 is a letter from Redmond Fire confirming 12% grade is acceptable on the
northern access road.
The Administrative Decision required Redmond Fire to certify the applicant is in
compliance with them prior to construction, earthmoving or clearing. While this site
plan is not proposing any construction Ex. 16 makes clear there are no requirements
for earthmoving or clearing. 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
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 16 of 22
Wildfire/Natural Hazard Protection Plan shall be submitted prior to commencement
of construction, earthmoving, or clearing' should be stricken.
Lastly, condition #4 required that we enter into the ROW. There was no ongoing
condition that Applicant comply with the BLW ROW as the ROW has its own
enforcement and compliance measures, similar to Condition 38 and the WMP.
Applicant will comply with the BLM ROW.
The Board agrees the language on page 32 should be removed as Exhibit 16: the email from
Clara Butler, Redmond Fire resolves any concerns the county concerns may have and makes
it a moot point, as noted in the Board decision. The Applicant shows it is complying with the
MOU, has entered into a Cooperative Improvement Agreement with ODOT and is complying
with the related conditions of 4 and 29.
12. Fire and Safety Issues are Not Being Addressed - 18.113.070(1): CMP Conditions 4,
19 & 24.
The Board finds these issues are CMP criterion that were resolved in the CMP and are
collateral attacks on the CMP. As it is conceivable these findings will be challenged on appeal,
the Board has also addressed and resolved the arguments raised on their merits below.
Opponent claims include;
a. Property has not been annexed into Redmond Fire.
b. Redmond Fire Department requires the southern access road to be built now,
c. The project needs to have backup power to insure fire flow.
Issues raised by T. Bishop and N. Gould.
The Applicant responded:
This is a CMP criterion that has been resolved and these attacks are collateral attacks
on the CMP. The entire property has been annexed into the Redmond Fire district.
The Board made this Condition 24 of the CMP, which was approved in 2008 as is
shown in Ex. 29: Annexation Documentation. The FMP decision determined that
Condition 24 was satisfied. The timing of construction of the access roads was
covered by Condition 4, which stated construction of a secondary/emergency access
roads shall be prior to final plat approval or issuance of a building permit, whichever
comes first. Further, the email from Clara Butler, Redmond Fire, makes clear that no
access or water is required until combustible materials for structures arrive onsite.
See Ex. 16. Applicant has met the standards and was approved in the CMP.
There is no requirement in the CMP/FMP or County code requiring the resort to have
backup power. If Bishop had a concern about that he should have raised it in the CMP
proceeding. The applicant is going to great lengths to ensure the safety of its residents
and guests (Ex. 30-a, Board CMP Dec. Pgs. 8-10). It completed a wildfire and natural
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 17 of 22
hazards plan (Ex. M & Condition 19) and is planning redundancies in its power and
fire suppression systems as described on the Comment Chart, submitted July 1, 2020.
The Board finds the Applicant has addressed all fire and safety issues, that the southern road
is not required now per Condition 4, that Condition 24 was satisfied with the complete
annexation into Redmond Fire District. Also, the Applicant satisfied, and is complying with
Condition 19: Wildfire and Natural Hazards plan. Nothing further is required at this point.
13. Protection, preservation, enhancement, and maintenance of natural features,
natural characteristics, and natural resources: CMP Condition #34.
The Board finds these issues were raised and debated in the CMP, including under criterion
18.113.050(B)(1), (13)(4), (13)(5) and 18.113.070(E), all discussed below. These were resolved in
the CMP and are collateral attacks on the CMP. While the issues are related to 18.124.060(B),
which is a relevant site plan criterion the CMP criterion are broader and more extensive than
those of the site plan. As it is conceivable these findings will be challenged on appeal, the
Board has also addressed and resolved the arguments raised on their merits below.
Opponent Claims include:
a. The applicant "failed to identify the natural features to be preserved",
b. Views and natural features must be identified and located on the site plan with
commitments to how they will be preserved.
Issues raised by COLW relate to 18.124.060(A)(B) which is discussed in detail in the
Decision.
The Applicant responded:
These issues were dealt with extensively in the CMP, to satisfy numerous code
elements, including:
18.113.050(8)(1). A description of the natural characteristics of the site and
surrounding areas, including a description of resources and the effect of the
destination resort on the resources, methods employed to mitigate adverse impacts
on resources; analysis of how the overall values of the natural features of the site
will be preserved, enhanced or utilized in the design concept for the destination
resort, and a proposed resource protection plan to ensure that important natural
features will be protected and maintained. Factors to be addressed include:
c. Slope and general topography;
f. Vegetation,
h. Important natural features:
M 113. 050(B)(4). Design guidelines and development standards defining visual and
aesthetic parameters for.
c. Preservation of existing topography and vegetation, and,
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 18 of 22
18.113.050(8)(5). An open space management plan which includes:
b. An inventory of the important natural features identified in the open
space areas and any other open space and natural values present in
the open space;
C. A set of management prescriptions that will operate to maintain and
conserve in perpetuity any identified important natural features and
other natural or open space values present in the open space,
18.113.070(E). Important natural features, including but not limited to significant
wetlands, riparian habitat, and landscape management corridors will be
maintained. Riparian vegetation within 100 feet of streams, rivers and significant
wetlands will be maintained. Alterations to important natural features, including
placement of structures, is allowed so long as the overall values of the feature are
maintained.
During the CMP the applicant provided numerous reports and documents relevant to
the above criteria, including: Ex. 42: the Natural Characteristics and Geology Report
from Newton Consultants, Ex. 43: the Wildlife and Habitat report from Tetra Tech, Ex.
44: the Open Space Management Plan. The FMP WMP (Ex. 38) is also relevant as it
reinforces details from the CMP. The applicant also provided extensive details how it
would use a concerted effort to preserve and maintain the features and feel of the
property, i.e.: use a light touch in its development activities. That efforts would be
taken to preserve and encourage old growth juniper woodlands, and that rock
outcrops would be preserved wherever possible. The CMP showed the topography of
the cite that the buttes themselves provide the Thornburgh property 700 feet of
elevation change, that the upper elements have homesites fed by single loaded roads
to protect the views of all, and that the golf and lakes are located on the lower lands.
In the CMP siting golf on the lower reaches enhanced the site natural views adds as it
would provide broad expanses of clearings.
In the CMP, the Board found that while there are resources worth preserving the site
did not have any important natural features, that tree and rock outcrops did not
qualify under the definition. Condition 34 was added to protect open space areas that
had been disturbed. The Board found that Applicant had met all the criterion of the
CMP related to this, which is broader than the criterion of 18.124.060A and B. Any
further attack in this proceeding is a collateral attack on the CMP. See Ex. 30 and 30-
A, Board CMP Dec.
The Board finds Applicant reducing impacts to the greatest extent possible. While there may
not be important natural features, the Applicant has described the extensive efforts to
protect and preserve trees, rock outcrops and topography. Condition 34 deals with areas
outside of the Golf course or lakes that are disturbed and the WMP prescribes actions to be
taken and the timing when those will be completed to restore disturbed areas. The Applicant
is meeting the criterion.
14. Lighting. CMP Condition #31.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBITA Page 19 of 22
The Board finds the issues were raised and resolved in the CMP and are collateral attacks on
the CMP. Also claim "b" below is not relevant to this site plan application. As it is conceivable
these findings will be challenged on appeal, the Board has also addressed and resolved the
arguments raised on their merits below.
Opponent claims include:
a. All exterior lighting shall be shielded so that direct light does not project off site,
b. The present lighting code does not meet the Dark Sky guideline.
Issue raised by N. Goud, COLW.
The Applicant responded:
It is not proposing lighting here, so the claims are irrelevant. Also, Gould raised the
issue in the CMP that resulted in the Board adding condition (#31) requiring Applicant
comply with Deschutes County code on lighting. See Ex. 30, CMP Board Dec. Pgs. 30,
32. This condition was carried forward as a condition of the FMP assuring compliance
with County lighting codes. Further attacks are a collateral attack on the prior
approvals, including Gould's arguments that the Code is not sufficient.
The Board finds this application does not propose any lighting, nor any change to Condition
#31, which requires adherence to the County Code. The Applicant is in compliance with
Condition 31.
15. Population of Bend exceeds 100,000:
The Board finds this issue was resolved at the time of the CMP, and that it is a collateral
attack on the CMP. Further it is not a relevant site plan criterion. As it is conceivable these
findings will be challenged on appeal, the Board has also addressed and resolved the
arguments raised on their merits below.
Opponents claim resorts are not allowed to be sited within 24 miles of cities over 100,000.
Issue raised by P. Lipscomb, K. Cody.
The Applicant responded:
The issue was resolved when Thornburgh applied for its CMP approval on February
18, 2005, or what the CMP was approved by the County on December 9, 2009. At no
time during the CMP was the issue raised. The population was far less than 100,000
then as it was when the resorts FMP was approved. The argument is a collateral attack
on the CMP, which is discussed in more detail in Exhibit 8, Liz Fancher letter submitted
at the hearing. It is not a relevant approval criterion.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT Page 20 of 22
The Board notes that as of the date of this decision the official population of Bend is less
than 100,000 although it is expected that it may exceed this number when the current census
is completed. The intent was to be determined at the time of siting of a resort, which could
have occurred when it was mapped for use as a destination resort, not 15 years after it was
applied for, or more than a decade after the CMP was approved.
16. Tax Lot 7700 is not a legal lot of record.
Issue raised by Central Oregon Land Watch.
The Board finds this issue was resolved at the time of the CMP, and further with the legal lot
of record approval (File 247-14-00045-LR) that COLW participated in, which was found
against them. The claim is a collateral attack on the CMP and the legal lot of record approval.
Further it is not a relevant site plan criterion. As it is conceivable these findings will be
challenged on appeal, the Board has also addressed and resolved the arguments raised on
their merits below.
The Applicant responded:
This is false, as TL 7700 is actually comprised of 6 legal lots of record. This is discussed
in greater detail in letter from Liz Fancher. Furthermore, the issue was resolved in the
CMP and the FMP which ruled all the Thornburgh property were legal lots of record.
As such this is an impermissible collateral attack on those approvals. It is also a
collateral attack on the lot of record decision which recognized TL 7700 as 6 legal lots
of record, that Land Watch participated in. See Ex.15, Liz Fancher letter.
The Board finds Tax Lot 7700 is a legal lot of record, as described in File 247-14-00045-LR.
17. Well Indemnification Agreement: CMP Condition 11.
The Board finds this issue was resolved in the CMP with the imposition of Condition 11 and
is barred from further claim as a collateral attack on the CMP. Also, it is not a relevant
approval criterion for the site plan. As this finding could be appealed the merits are discussed
below.
Opponents' issues include:
a. how does the well agreements work, and;
b. how was the two-mile radius determined?
Questions raised by Jim Guild, and N. Engebretson.
The Applicant responded:
The issues pertaining to the well indemnification agreements were resolved in the
CMP and are barred from being raised in this proceeding. Further this issue is not a
criterion for approval of this site plan. The well agreement on file with the County was
approved during the review of the CMP. Eco: Logic suggested the same distance in
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT Page 21 of 22
the well monitoring agreement, which was approved by the Board. See Ex. 30 Board
CMP Dec., Pg. 27. Nothing is required of the Applicant at this point.
The Board finds that the Well Indemnification Agreement speaks for itself. The Applicant is
not proposing any change to the agreement, which requires nothing of the Applicant now.
Applicant is in compliance with Condition 11.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT A Page 22 of 22
EXHIBIT B: IMPROPER REBUTTAL FILED BY OPPONENTS
The following items filed during the post -hearing rebuttal period are improper rebuttal
because they do not rebut to any evidence or testimony by applicant or other party filed
during the first post -hearing comment period and, except as noted, are disregarded.
The Applicant argues:
A. K. Anuta, 7/8/20. The materials pertaining to a new water permit to store water on
pages 2, 3 and the top of 4 are new evidence, not rebuttal as Anuta claims. On page
2 he refers to Ex. #15, a letter from attorney Liz Fancher where Anuta says "the
applicants counsel specifically notes that the project ... will include a recreational lake
[and] a lake/boating clubhouse...." Ms. Fancher did not say that, or anything else on
the subject. At the hearing the Board asked about COLW's lot of record arguments.
Ms. Fancher said she would respond in writing to those arguments. Ex. 15 is that
response titled "Response to COLW's Lot of Record Argument." The Fancher letter
includes exhibits to support her arguments about COLW's Lot or Record Claims. Her
material does not make any other legal or factual argument.
Anuta, in a footnote refers to Pg. 23 of Fancher's submittal. Pgs. 20-24 are pages #1-
4 of the BOCC CMP 2006 Dec. On Pg. 24 Ms. Fancher highlighted Section G: LEGAL
LOT as the portion relevant to her argument. That is the only portion of the BOCC
decision she highlights. For background, the Thornburgh project was permitted as
two separate villages, the Tribute and the Pinnacle (Ex. 15, Pg. 22).
Furthermore, the language cited by Anuta does not relate to the part of the Resort
where the golf course and lakes are proposed. This site plan is about the golf course
and related lake in the southern, or Tribute portion of the property. This is obviously
being built as part of Phase A. By contrast, the paragraph on pg. 23 with the language
Anuta refers to begins with; "The Pinnacle will be located primarily in the northern
half of the property and is planned to include one golf course ... a recreational lake....
The paragraph ends with "Most of the Pinnacle development is proposed to occur
during Phases D through F" that does not relate to this site plan.
The Board finds Ms. Fancher's materials respond only to COLW's lot of record arguments
and that Anuta's reference to the BOCC decision page 23 about a lake in Phases D-G are
unrelated and result in a new legal theory. The Board rejects the reference to it and
excludes it from the record. It is also a collateral attack on the CMP and Water rights
permit that is dealt with in detail in Exhibit A. Further this is not a relevant site plan
criterion.
The Applicant argues:
B. N. Gould 7/8/20. Ms. Gould submitted rebuttal, and with the exception of Applicant's
comments related to ADA access, did not mention any Applicant evidence she was
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 1 of 6
rebutting. To the contrary she refers to numerous other items submitted by others at
various times.
a. The first paragraph deals with a variety of issues, including; DSL comments
from January 16, 2020, the Wetlands in Deep Canyon and DSL's failure to
mention them, Intermittent waterways on the property included in DSL's 2018
comments, a Jim Guild exhibit showing some of the same waterways, and the
contention that the site plan should include some of the same because of
alleged flooding at Eagle Crest. Referenced in this paragraph are Exhibits Al,
A2, & A3.
b. The 2nd paragraph dealing with Tax Lot 7900 and the COID comments that
COID submitted as Agency comments when the application was filed. Gould
comments that pertain to TL 7900. Referenced in this paragraph are Exhibits
B1, and B2, both of which should be excluded as improper for rebuttal.
The Board finds these items were not responsive to a submittal by Applicant, are improper
rebuttal and are disregarded. Further, they are not relevant to any approval criterion. The
issues raised in paragraph 1 of page 4 are collateral attacks discussed in Exhibit A.
The Applicant argues:
C. Kleinman 7/8/20. Applicant highlighted the improper items in Exhibit 47 which include
the following:
a. Page 1, Last paragraph. Kleinman claims applicants claims of collateral attack
simply fail as he has stated before. He also states that "if" Applicant intends to
sneak in an argument of claim preclusion or issue preclusion that must fail
also as the applicant has presented no basis for reliance on those theories. By
Kleinman's own statement Applicant did not raise claim or issue preclusion as
he says if we do. That is not proper rebuttal to anything Applicant submitted
during the open evidence period. Raising the issue of collateral attack is not
proper rebuttal, except as it relates to the lot of record. That was the only
reference to collateral attack in the open evidence period. The other
arguments Kleinman makes about water collateral attacks are not proper
rebuttal. That said, opponents' collateral attacks on water related issues are
discussed in great detail Applicants Exhibit 46: "Impermissible Collateral
Attacks."
The Board concurs finding with the exception of the lot of record argument that the above
was not proper rebuttal and is disregarded. The Board deals with Collateral Attacks in Exhibit
A.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
b. Page 3: 1 St paragraph makes argument how application is inadequate and
failed to meet standards of 18.124. Kleinman failed to state how the following
items fail to meet the standard of 18.124 or specifically what standard he feels
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are deficient, or how the issues cited below are relevant. Much of the
arguments are based on the site plans submitted with the application giving
Opponents months to comment upon. As noted, with the exception of #2 and
15, the items below are not proper rebuttal but new evidence.
1) SP 2.2 submitted on June 17 at the hearing identifies the approximate
location of the entry road on BLM land. Kleinman claims the BLM ROW
is very specific about the location so we cannot use the term
approximate.
SP 2.2 was submitted with the application then again at the June 17,
2020 hearing. Kleinman states it was not submitted during the open
evidence period, so it is not proper rebuttal. CMP Condition #3 required
Applicant to enter into the ROW with the BLM. The Applicant complied
and did so, entering into this ROW. The BLM and the ROW has its own
mechanisms to ensure compliance with the agreement and the County
is not tasked with those compliance matters. Further this is a collateral
attack on the CMP and the ROW.
The BOCC finds SP 2.2 was not submitted during the open evidence period so is not proper
target of rebuttal. Applicant has met Condition 3 as required. We agree the BLM, not the
County will administer compliance with the ROW. As a result, this is a collateral attack on the
CMP. Opponents claim fails.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
2) This is proper rebuttal in response to US Access Board guidelines the
Applicant provided as its Exhibit 17. The applicant states it will comply
with those access standards for the golf course. The application is not
proposing recreational use of the lakes at this time so that is irrelevant.
The Board finds that Applicant will comply with the US Access Guidelines for the golf course
and deals with the ADA issues in its Decision, which includes a finding that the approval does
not approve recreational use of the lakes at this time.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
3) While Kleinman's claim that the beach slopes do not meet ADA
requirements is not proper rebuttal to Applicant evidence, it is
irrelevant as the Applicant is not proposing recreational use of the lakes
as this time.
The Board finds this is not proper rebuttal but also that it is irrelevant as noted in #2 above
the decision does not approve recreational use of the lakes.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
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File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 3 of 6
4) The issue raised is parking in relation to the distance to existing
residences, stating people are not going to walk to play golf or lug their
watercraft 2 miles to the lake. The comments are based on the site plan
submitted at time of application. Applicant has stated no recreational
use of the lakes is proposed at this time.
This is not proper rebuttal as there was nothing new submitted regarding this. Recreational
use of lake and parking standards are dealt with in the Board Decision.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
Comments 5-14 all relate to the lakes and response is grouped together
following #14.
5) The legend on SP1.1 shows 8 acres of lakes. Other plans only show 6
acres of lakes.
6) The site plans only show 3 lakes, not 2.
7) The large lake is bifurcated with the entry road. A new legend is needed
to show how they're connected or where discharge is.
8) The site plan does not show how the entry road crosses the large lake.
9) The information on file begs the question of whether abutments for the
road are.
10) The site plan employs imprecise terms such as "approximate".
11) The connection between the large lake and small lake, and the overflow
holding capacity of the lower lake is not shown.
12) The applicant does not show or state whether there is an earthen dam,
a plastic liner or something else.
13) The site plan does not show how the lakes are connected.
14) Will any bentonite be used to keep the pond from seeping into the
ground or will a welded membrane like BTL be used? If plastic this
could compel calculation of evaporation.
Comments 5-14 are all based on the materials and site plan submitted
with the application. They are all new evidence, and not proper
rebuttal. For question 5 and 6 Kleinman answers his own question in
comment #16 below where Kleinman seems to recognize the large lake
is 6 acres and the smaller is approximately 2 acres. The Applicant has
confirmed that Exhibit AA includes water amounts that have taken
evaporation into account, in compliance with CMP Condition 10.
Kleinman fails to show how these items relate to specific site plan
approval criterion.
The Board finds these items are not proper rebuttal and that Kleinman failed to cite specific
site plan criterion for approval that they relate to. The Applicants use of the term
"approximate" is dealt with in the Board Decision and given the vast scale of this site plan is
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 4 of 6
acceptable as noted in the Decision. Water for evaporation is included in Exhibit AA. Some
of these items are details that will be shown in the construction drawings for roads
previously approved. The Board does not find any of these are criterion required for
approval of the site plan.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
15) Responds to materials Applicant submitted in open evidence period
pertaining to the ACEC and the old Tumalo Canal.
The Board finds this is a collateral attack on the WMP and is dealt with in Exhibit A.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
16) SP shows a 6-acre lake on the southernly portion of the large lake. Does
this refer to the southernly portion of the large lake? (See comment in
#5 above).
The comments are based on application drawings not on the open
evidence materials submitted by the Applicant and is improper
rebuttal. in. Further it is not a relevant approval criterion. As noted
above Kleinman has answered his own question, that yes this is the
southern portion.
The Board concurs and finds this is improper rebuttal, and that it is not a relevant site plan
criterion.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
17) SP3.1 does not show any of the rock outcroppings between Cline Falls
Rd. and the entry gate. Site plan should show what will remain after
construction.
The comments based on drawings submitted with application not
during the open evidence period. It is a collateral attack on the CMP
and the WMP which specify the treatment of rock outcroppings. And,
on SP 3.1 the Applicant provided details of all rock outcroppings that
could be affected in compliance with prior actions.
The Board finds this to be improper rebuttal, and also collateral attacks that are dealt with
in Exhibit A. Also the Board finds SP 3.1 to comply with previous standards.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
18) Because of the hashed area in the west golf area it's unclear what this
means. What is it?
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This is based on drawings submitted at time of application and is new
evidence not rebuttal. In response to the claim, the legend on SP4.1
shows the hashed areas are added open space.
The Board finds this is not proper rebuttal, but more importantly SP 4.1 shows the area in
question to be open space as Applicant is required to show.
The Applicant argues, regarding Kleinman's submittal dated 7/8/20:
19)The claim is that the JWRO-K area or rock outcropping shown on the
site plan drawings do not show the impact of stormwater retention
areas abutting the entry road.
This is based on drawings submitted at time of application and is new
evidence not rebuttal. As noted in #17 above this is a collateral attack
on the CMP/FMP/WMP. Further rock outcroppings are shown on SP
3.1 in compliance with previous approvals.
The Board finds this to be improper rebuttal, and also collateral attacks that are dealt with
in Exhibit A. Also, the Board finds SP 3.1 to comply with previous standards.
The Applicant argues:
D. Mel Stout 7/8/20: The entire email is disregarded as not rebuttal to anything applicant
submitted but new evidence, based in part, according to Mr. Stout on comments
made by Yancy Lind in a Bend Bulletin article, which is not in the record. Further the
arguments Mr. Stout makes are collateral attacks discussed in Exhibit A. Further he
fails to show how his arguments are relevant to any approval criterion for this site
plan.
The Board concurs.
The Applicant argues:
E. Don Barber, 7/8/20. The entire email should be disregarded as it is not proper rebuttal
but new evidence. The issue pertaining to the water and well indemnification
agreement is a collateral attack dealt with in Exhibit A. Further Mr. Barber fails to cite
to any relevant approval criterion for this site plan.
The Board concurs.
Board of County Commissioners Decision, Document No. 2020-579
File No. 247-19-000881-SP Thornburgh Golf Course - EXHIBIT B Page 6 of 6