2023-25-Order No. 2023-004 Recorded 1/17/2023REVIEWED
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LEGAL COUNSEL
Recorded in Deschutes County CJ2023-25
Steve Dennison, County Clerk
Commissioners' Journal 01 /17/2023 3:36:54 PM
tFS C�GI II I I I IIIII�II II I I III I I I II III
2023-25
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Accepting Review of Hearings
Officer's Decision in File No. 247-22-000678- * ORDER NO. 2023-004
MC.
WHEREAS, on December 19, 2022 the Hearings Officer denied File No. 247-22-000678-MC;
and
WHEREAS, on December 30, 2022, Central Land & Cattle Company, LLC, Kameron
DaLashmutt, and Pinnacle Utilities, LLC ("Applicant") , appealed (Appeal No. 247-22-000984-A)) the
Deschutes County Hearings Officer's Decision on File No. 247-22-000678-MC; and
WHEREAS, on January 3, 2023, Annunziata Gould ("Appellant"), appealed (Appeal No. 247-
23-000003-A) the Deschutes County Hearings Officer's Decision on File No. 247-22-000678-MC;
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 hear on appeal Appeal Nos. 247-22-000984-A and 247-23-000003-
A pursuant to Title 22 of the DCC and other applicable provisions of the County land use
ordinances.
Section 2. The appeals shall be heard de novo.
Section 3. Staff shall set a hearing date and cause notice to be given to all persons or
parties entitled to notice pursuant to DCC 22.24.030 and DCC 22.32.030.
ORDER No. 2023-004
Section 4. Pursuant to Section 22.32.024, the Board waives the requirement that the
appellants provide a complete transcript for the appeals hearing.
Section 5. Pursuant to DCC 22.32.035(D), to date the only documents placed before and
considered by the Board are the notice of appeals, recommendations of staff, and the record
developed before the lower hearings body for File No. 247-22-000678-MC as presented at the
following website:
https•//www deschutes or /g cd/page/247-22-000678-mc-thornburgh-destination-resort-
modification-cmpfmpfwmp
Going forward, all documents further placed before, and not rejected by, the Board shall be added
to the aforementioned website, and that website shall be the Board's official repository for the
record in this matter.
DATED this Wday of ; 2023.
/111-Tsul
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
ANTHONY DEBONE, Chair
U . 1 1\o
PATTI ADAIR, Vice Chair
f�2c ���
PHIL CHANG, Commissioner
ORDER No. 2023-004
I ES C-0 I
2� BOARD OF
COMMISSIONERS
MEETING DATE: January 11, 2023
SUBJECT: Board Order 2023-004; Decision whether to hear two appeals of a Hearings
Officer's decision for a Thornburgh Resort modification request.
RECOMMENDED MOTIONS:
Move approval of Order 2023-004 an Order accepting review of Hearings Officer's Decision
in File No. 247-22-000678-MC and establishing the review will be heard de novo.
•'
Move approval of Order 2023-004 accepting review of Hearings Officer's Decision in File No.
247-22-000678-MC and establishing the review will be heard on the record.
Move approval of Order 2023-004 denyingreview eview of Hearings Officer's Decision in File No.
247-22-000678-MC.
BACKGROUND AND POLICY IMPLICATIONS:
The Thornburgh Destination Resort requests that the Board of County Commissioners hear
two appeals of a Hearings Officer decision (ref. file no. 247-22-000678-MC). As part of this
decision, the Hearings Officer denied the Resort's modification request to the Resort's Fish
and Wildlife Mitigation Plan.
BUDGET IMPACTS:
None.
ATTENDANCE:
Anthony Raguine, Principal Planner
William Groves, Planning Manager
Legal Counsel
•
w. \ COMMUNITY
Up I DEVELOPMENT
MEMORANDUM
TO: Board of County Commissioners
FROM: Caroline House, Senior Planner
DATE: January 4, 2023
RE: Appeals of a Hearings Officer's denial of a Modification of the Thornburgh Destination
Resort's Fish & Wildlife Management Plan ("FWMP") (Appeal Nos. 247-22-000984-A
and 247-23-000003-A).
On January 11, 2023, the Board of County Commissioners ("Board") will decide whether to hear two
appeals of a Hearings Officer decision (ref. file no. 247-22-000678-MC) for the Thornburgh
Destination Resort. As part of this decision, the Hearings Officer denied the Resorts ��1odification
request to the Resort's FWMP.
1. BACKGROUND
In Deschutes County, all destination resorts are required to develop and implement mitigation plans
to demonstrate any negative impact on fish and wildlife resources, associated with a resort's use,
will be mitigated to ensure there is "no net loss" of habitat pursuant to Deschutes County Code
(DCC) 18.113.070(D).
For the Thornburgh Resort ("Resort"), the County elected to defer review of DCC 18.113.070(D) to
the Final Master Plan ("FMP") review process. As part of the Resort's FMP, the Resort developed
several mitigation plans, including the following required plans:
1. 2008 Wildlife Mitigation Plan ("WMP")
2. 2008 Mitigation and Monitoring Plan ("M&M Plan")
3. 2008 FWMP
4. FMP Condition 39 - Whychus Creek Mitigation
The WMP and M&M Plan are the mitigation plans for impacts to terrestrial wildlife habitat, and the
2008 FWMP and FMP Condition 39 are the mitigation plans for fish habitat. The fish habitat
117 NW Lafayette Avenue, Bend, Oregon 97703 1 P.O. Box 6005, Bend, OR 97708-6005
A� (541) 388-6575 @ cdd@deschutes .org ® www.deschutes.org/cd
mitigation plans are required because there is a connection between the Resort's groundwater
pumping and groundwater entering rivers and streams, which could have impacts on fish habitat.
Given this connection, the Resort's mitigation plans for fish habitat commit the Resort to acquiring
additional water rights to offset the impacts associated with the Resort's groundwater pumping on
fish habitat. It is important to note the approved fish habitat mitigation plans are in addition to the
Resort's water mitigation requirements through the Oregon Water Resources Department
("O W R D").
Lastly, staff notes the Resort's required mitigation requirements were not settled until 2018, more
than 10 years after the FMP review process was initiated, due to numerous appeals and several
remand proceedings.
II. SUBJECT APPLICATION
In August 2022, the developer of the Resort applied for a Modification to replace the 2008 FWMP
with a new FWMP ("2022 FWMP"). As a part of this request, the applicant proposed several water
conservation measures by reducing some water intensive amenities, and reducing irrigated
landscaping for Resort facilities and individual homes. As a result, the Resort proposes to reduce its
total water needs from 2,129 acre-feet ("AF") to 1,460 AF.
A public hearing before a Hearings Officer was held on October 24, 2022. The Hearings Officer
denied the Resort's Modification request on December 19, 2022, based on the following two key
issues:
1. The Hearings Officer found input on the 2022 FWMP from the Oregon Department of Fish &
Wildlife ("ODFW") is a relevant evidentiary consideration in determining if the "No Net Loss"
standard is met. However, the Resort did not provide ODFW enough time to review the 2022
FWMP and submit a meaningful response.
2. The 2022 FWMP does not contain clear, objective and enforceable compliance language, and
for this reason, there can be no assurance that the 2022 FWMP is likely or reasonably certain
to succeed at achieving the County's "No Net Loss" requirement.
As part of this decision, the Hearings Officer made a number of interpretative decisions that will
likely impact future development of the Resort and potentially other land use applications in
Deschutes County.
III. APPLICANT'S APPEAL
On December 30, 2022, the Applicant filed an appeal. As part of the Notice of Appeal, the Applicant
identifies three appeal issues that the Applicant believes the Hearings Officer made incorrect
findings on. The appeal issues are related to:
247-22-000678-MC / 247-22-000984-A / 247-23-000003-A Page 2 of 4
1. Interpreting the Procedures Ordinance - DCC 18.113.080, DCC 22.36.040, and Thornburgh
FMP Condition 1;
2. Review of the "Not Net Loss" Standard; and
3. Requirements for the Published Notice for the Initial Public Hearing
The Applicant requests the Board review the appeal on the record.
IV. GOULD APPEAL
On January 3, 2023, Annunziata Gould ("Appellant") filed an appeal. As part of the Notice of Appeal,
the Applicant identified 18 appeal issues that the Hearings Officer made incorrect findings. Gould's
Notice of Appeal is attached. The Appellant requests the Board review the appeal de novo.
V. STAFF RECOMMENDATION
Staff recommends the Board hear both, appeals de novo.
VI. BOARD OPTIONS
First, the Board must decide if it wishes to hear the appeals. In determining whether to hear the
arnrn.nAkz the Rnard ma / nnly consider:
1. The record developed before the Hearings Officer;
2. The notices of appeal; and
3. Recommendation from staff
Option 1: Hear the Appeals:
If the Board decides to hear the appeals, the Board must make a decision on the scope of the review.
As noted above, the Applicant and Appellant have filed different requests for the scope of the
review. Per the DCC, the Board has two choices for the scope of the review:
1. On the Record
- This means parties can only present their arguments and the Board must rely on the
record developed before the Hearings Officer. No new evidence can be submitted.
2. De Novo
- This means parties can submit new evidence and present their arguments.
Next, the Board may wish, but is not required, to limit the issues it will consider as part of the Board's
review.
Lastly, the Board may want to establish time limits for testimony at the appeal hearing.
247-22-000678-MC / 247-22-000984-A / 247-23-000003-A Page 3 of 4
Option 2: Not Hear the Appeals:
If the Board decides the Hearings Officer's decision represents their perspective on this application,
the Board should decline to hear the appeals. This results in the Hearings Officer's decision
becoming the final decision of the County. Upon the mailing of the Board's decision to decline
review, the parties appealing may continue their appeals as provided under the law.
VII. 150-DAY LAND USE CLOCK
The 150t" day on which the County must take final action on these applications is March 12, 2023. If
the Board decides to hear the appeals there will be 60 days, from January 11, 2023, for the Board to
issue a decision.
VIII. RECORD
The record for the subject application and appeals is as presented at the following Deschutes
County Community Development Department website:
https://www deschutes org/cd/page/247-22-000678-mc-thornburgh-destination-resort-
modification-cmpfmpfwmp
Attachments:
1. DRAFT Board Order 2023-004 Accepting Review (De Novo)
2. DRAFT Board Order 2023-004 Accepting Review (On the Record)
3. DRAFT Board Order 2023-004 Declining Review
4. Notice of Appeal - Applicant (Appeal No. 247-247-22-000984-A)
5. Notice of Appeal - Gould (Appeal No. 247-23-000003-A)
6. Hearings Officer Decision - 247-22-000678-MC
7. 2022 FWMP
247-22-000678-MC / 247-22-000984-A / 247-23-000003-A Page 4 of 4