2022-319-Order No. 2022-045 Recorded 9/6/2022REVIEWED
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LEGAL COUNSEL
Recorded in Deschutes County C J2�22_319
Steve Dennison, County Clerk
Commissioners' .journal 09/06/2022 4:53:19 PM
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2022-319
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Declining Review of Hearings
Officer's Decision in File No. 247-22-000246- * ORDER NO. 2022-045
DR (247-22-000673-A).
WHEREAS, on August 5, 2022, the Hearings Officer approved File No. 247-22-000246-DR;
and
WHEREAS, on August 17, 2022, Central Oregon Landwatch, the Appellant, appealed (Appeal
No. 247-22-000673-A) the Deschutes County Hearings Officer's Decision on File No. 247-22-
000246-DR; and
WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code ("DCC") allow
the Deschutes County Board of County Commissioners ("Board") discretion on whether to hear
appeals of Hearings Officer's decisions; and
WHEREAS, the Board has given due consideration as to whether to review this application
on appeal; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. That it will not hear Appeal No. 247-22-000673-A pursuant to Title 22 of the
DCC and/or other applicable provisions of the County land use ordinances.
Section 2. Pursuant to DCC 22.32.015, the County shall refund any portion of the appeal
fee not yet spent processing the subject application. If the matter is further appealed to the Land
Use Board of Appeals and the County is required to prepare a transcript of the hearing before the
Hearings Officer, the refund shall be further reduced by an amount equal to the cost incurred by
the County to prepare such a transcript.
Section 3. Pursuant to DCC 22.32.035(D), the only documents placed before and
considered by the Board are the notice of appeal, recommendations of staff, and the record
developed before the lower hearing body for File No. 247-22-000246-DR (appeal file no. 247-22-
000673-A) as presented at the following website:
ORDER NO. 2022-045
https://www.deschutes.org/cd/page/247-22-000246-dr-declaratory-ruling-initiation-use- ug est-
ranch
Section 4. Pursuant to DCC 22.35.035(A), the decision of the Hearings Officer in File No.
247-22-000246-DR shall be the final decision of the County.
DATED this 31
ATTEST:
day of Au cis , 2022.
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
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PATTI ADAIR, Chair
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ANTHONY DeBONE, Vice Chair
PHIL CHANG, Commissioner
ORDER NO. 2022-045
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COMMISSIONERS
MEETING DATE: August 31, 2022
SUBJECT: Board decision to hear or not hear an appeal of the Hearings Officer's approval
of a Declaratory Ruling to determine whether a Guest Ranch has been initiated.
RECOMMENDED MOTION:
Staff recommends the Board not hear the appeal.
BACKGROUND AND POLICY IMPLICATIONS:
On August 31, 2022, the Board of County Commissioners ("Board") will consider hearing an
appeal of the Hearings Officer's approval of a Declaratory Ruling to determine whether a
Guest Ranch has been initiated.
I. PROCEDURAL HISTORY
On March 29, 2022, Central Oregon LandWatch ("COLW") submitted a letter to the record
expressing concern for the application. Two adjacent neighbors to the subject property also
submitted letters expressing concern of the application. Based on these comments, staff
referred the application to a public hearing before the Hearings Officer to make a ruling on
whether the use of the Guest Ranch has been initiated. The public hearing was held on June
16, 2022, and the Hearings Officer issued a decision on August 5, 2022, which determined
that the use had been initiated. On August 17, 2022, COLW filed a timely appeal (247-22-
000673-A) of the Hearings Officer's decision.
II. PROPOSAL
The Guest Ranch applied for a Declaratory Ruling to determine if the Guest Ranch use has
been initiated. The Guest Ranch was approved for ten (10) overnight lodging units and a
lodge/kitchen building, along with passive activities and food services. In total, the Hearings
Officer found that approximately $900,000 was spent in association with the Guest Ranch
development, including construction of some cabins, installation of utilities, septic systems,
trenching, grading, and other site work. The Hearings Officer concluded that these actions
represented a good -faith effort in terms of time, labor, and money. Consequently, the
Hearings Officer found the Guest Ranch use was initiated.
III. COLW APPEAL
COLW, the appellant, requests the Board review the Hearings Officer's decision on appeal to
address the following summarized issues.
• The Hearings Officer decision misinterprets and misapplies DCC 22.20.015, which
prohibits the Countyfrom making any decision for a propertythat is in directviolation
of a condition of approval of a prior permit.
• The applicant is not the holder of the originally approved land use permits and
therefore lacks the authority to apply for a Declaratory Ruling that interprets a
previously issued land use permit.
• The previously approved land use permits became void on June 26, 2007 after the use
was not fully initiated and the land use permits are therefore void for all purposes.
The use of the Guest Ranch was abandoned for fifteen (15) years and during that time
the code provisions for a Guest Ranch were amended.
• Pursuant to ORS 215.130 (7), any lawful use at the time of amendment may not be
resumed after a period of abandonment unless it conforms to the new regulations
applicable at the time of the proposed resumption. The use was abandoned and may
not be resumed without demonstrating conformance with the new regulations.
• The decision failed to apply 22.35.020(A)(3), as construction was authorized, not
required. [Staff believes the correct citation should be to DCC 22.36.020(A)(3).]
IV. BOARD OPTIONS
There are two versions of Order No. 2022-045 attached to this staff report; one to hear the
appeal and one to decline to hear the appeal. In determining whether to hear an appeal, the
Board may consider only:
1. The record developed before the Hearings Officer;
2. The notice of appeal; and
3. Recommendation of staff'
In addition, if the Board decides to hear the appeal, it may consider providing time limits for
public testimony.
Reasons to hear
The Board may want to take testimony and make interpretations relating to the Hearings
Officer's decision. The Board may also want to reinforce or refute some or all of the decision
findings/interpretations prior to Land Use Board of Appeals review. Lastly, there was
participation from adjacent neighbors in the land use process.
1 Deschutes County Code 22.32.035(D)
Hearing format
Under Deschutes County Code ("DCC") 22.32.027(B)(1), a review before the Board shall be on
the record. Under DCC 22.32.027(B)(3), the Board may choose to hear a matter de novo at
their sole discretion. The appellant, COLW, does not request a specific format for the appeal
hearing.
Reasons not to hear
The Hearings Officer's decision is reasoned, well written, and could be supported, as the
record exists today, on appeal to LUBA.
If the Board decides the Hearings Officer's decision shall be the final decision of the county,
then the Board shall not hear the appeal and the party appealing may continue the appeal
as provided by law. The decision on the land use application and associated appeals
becomes final upon the mailing of the Board's decision to decline review.
V. STAFF RECOMMENDATION
Staff recommends the Board not hear this appeal because staff believes the appellant was
able to present all relevant evidence at the hearing and during the open record period.
Further, staff agrees with the Hearings Officer's analysis and decision.
VI. 150-DAY LAND USE CLOCK
The 150t" day on which the County must take final action on these applications is November
7, 2022.
VII. RECORD
The record for land use file nos. 247-22-000246-DR, 247-22-000673-A is as presented at the
following Deschutes County Community Development Department website:
https•//www deschutes.org/cd/page/247-22-000246-dr-declaratory-ruling-initiation-use-
guest-ranch
The website includes the appeal application filed by COLW.
BUDGET IMPACTS:
None.
ATTENDANCE:
Avery Johnson, Assistant Planner
Anthony Raguine, Principal Planner