2024-139-Order No. 2024-019 Recorded 6/7/2024f:7� I:MT/a�7
LEGAL COUNSEL
Recorded in Deschutes County CJ2024-139
Steve Dennison, County Clerk
Commissioners' Journal 06/07/2024 9:41 :05 AM
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2024-139
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Order Reopening the Record for File Nos.
247-22-000464-CU, 466-SP, 24-018-A * ORDER NO. 2024-019
*
WHEREAS, the Board of County Commissioners ("Board") is the hearings body for a Land
Use Action Hearing on Appeal from the Hearings Officer (ref. Appeal No. 247-24-000018-A)
("Appeal") pursuant to Deschutes County Code ("DCC") Chapter 22.32; and
WHEREAS, on April 10, 2024, the Board held a public hearing on the Appeal, at the
conclusion of which the Board closed the public hearing and allowed an open record period that
concluded on May 1, 2024;
WHEREAS, DCC 22.24.160(A) grants the Board discretion and authorityto reopen the record
either upon request or upon its own initiative;
WHEREAS, DCC 22.24.140(B) grants the Board discretion and authority to choose between
granting a continuance or leaving the record open.
WHEREAS, on May 21, 2024, the applicant submitted a request to reopen the record to
allow for submission of additional evidence; and
WHEREAS, the Board finds it is necessaryto reopen the record to afford all parties sufficient
time to respond to the issues raised during the public hearing of April 10, 2024; now, therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, HEREBY
ORDERS as follows:
Section 1. Pursuant to DCC 22.24.140(B) and DCC 22.24.160(A), the record of the Appeal
shall be reopened to accept new evidence and testimony for a period of time concluding on
July 31, 2024 at 4:00 PM; rebuttal materials for a period of time concluding on August 21, 2024 at
ORDER No. 24-019
4:00 PM; and applicant's final legal arguments for a period of time concluding on August 28, 2024
at 4:00 PM.
Section 2. Staff shall give written notice to all parties that the record is reopened as
established in this Order.
DATED this day of 024.
ATTEST:
Recording
BOARD OF COUNTY COMMISSIONERS
�4
PATTI ADAIR, Chair
ANTHONY DeBONE, Vice Chair
( Ye- C us-e ®C )
PHIL CHANG, Commissioner
ORDER No. 24-019
4:00 PM; and applicant's final legal arguments for a period of time concluding on August 28, 2024
at 4:00 PM.
Section 2. Staff shall give written notice to all parties that the record is reopened as
established in this Order.
DATED this IT day of 024.
ATTEST:
-4 wy'4 -
Recording Secretary
BOARD OF COUNTY COMMISSIONERS
PATTI ADAIR, Chair
ANTHONY DeBONE, Vice Chair
( re- cys-ec�)
PHIL CHANG, Commissioner
ORDER NO.24-019
MEETING DATE: May 29, 2024
SUBJECT: Request to reopen the record on the matter concerning a commercial activity in
conjunction with farm use (Lava Terrace Cellars) in the Multiple Use Agricultural
Zone
RECOMMENDED MOTION:
Move approval of Order 2024-019, reopening the record for Appeal No. 247-22-000018-A
through August 7, 2024 at 4 p.m.
Or
No action. in this case, Board deliberations for the proposal will be scheduled at the
earliest available time.
BACKGROUND AND POLICY IMPLICATIONS:
On April 10, 2024, the Board held a public hearing on an appeal of the Hearings Officer's
approval of applicant's application for a commercial activity in conjunction with farm use
(winery) in the MUA-10 zone, file numbers 247-22-000464-CU, 466-SP and 24-018-A. The
Board received testimony from the applicant, the appellant, and members of the
community. An open record of 7-7-7 was granted after the public hearing, as follows:
New Evidence & Testimony Phase - until Wednesday, April 17th at 4pm
Rebuttal Phase - until Wednesday, April 24th at 4 pm
Final Argument Phase (Applicant Only) - until Wednesday, May 1 st at 4pm
On Tuesday, May 21, 2024, Planning Division staff received a request from the applicant
that the record be reopened to accept additional evidence from the applicant and
appellant. The Board, as the hearings body, has discretion and authority to reopen the
record either upon request or on its own initiative under DCC 22.24.160(A). The Board
further has discretion and authority to choose between granting a continuance or leaving
the record open under DCC 22.24.140(B).
Should the Board decide to exercise its discretion and authority to reopen the record, the
applicant requests that the Board consider including the following schedule in its Order:
• Reopen the record at the Board's May 29, 2024 public meeting;
• Allow the record to remain open through July 31, 2024 for submission of written
testimony and evidence by the parties; and
• Schedule Board deliberations for a date certain within a reasonable time after the
record closes.
The applicant's request to reopen the record is included as Attachment A.
Deschutes County Code (DCC) Section 22.24.160(A) provides the Hearings Body (Board)
authority to reopen the record at its own discretion, either upon request or on its own
initiative, when the applicant has agreed to an extension of, or waived, the 150-day clock.
Staff notes that the applicant waived the 150-day clock on September 15, 2023. The request
is consistent with this criterion.
Deschutes County Code (DCC) Section 22.24.160(B)(1) provides the Hearings Body (Board)
discretion and authority to reopen the record for either oral or written testimony. Staff
notes that because DCC Section 22.24.140(B) requires the Board to make a choice between
granting a continuance or leaving the record open, and because there is no provision in the
Code for the Board to hold an additional hearing, it would be difficult for the Board to
accept oral testimony during the open record period. Therefore, staff suggests that the
Board consider granting the applicant's request to reopen the record for written testimony
only, which is consistent with this criterion.
Deschutes County Code (DCC) Section 22.24.160(B)(2) requires written notice to parties that
the record is reopened. Parties are then allowed the opportunity to raise new issues that
relate to the new evidence, testimony or criteria for decision -making that apply to the
matter at issue. Staff will provide this notice at the direction of the Board if the Board
grants the request to reopen the record.
Staff recommends that the duration of the reopened record period be limited from May 29,
2024, to August 7, 2024. At the end of any reopened record period, any party may request,
or the Board may decide on its own initiative, to reopen the record again pursuant to DCC
22.24.160(A).
The draft Board Order (2024-019) is included as Attachment B.
BUDGET IMPACTS:
None
ATTENDANCE:
Nathaniel Miller, Associate Planner
Davis Wright
LJ Tremaine LAP
May 21, 2024
VIA EMAIL - Nathaniel.Miller(a,deschutes.org
Deschutes County Board of Commissioners
c/o Nathaniel Miller
Associate Planner
Deschutes County Community Development
117 NW Lafayette Ave
Bend, Oregon 97708
Re: Lava Terrace Cellars, LLC
Appeal of Land Use File 247-22-000464-CU, 247-24-000018-A
Dear Chair Adair and Commissioner DeBone:
Suite 700
560 SW 10"' Ave
Portland, OR 97205
Elaine R. Albrich
503-778-5423 tel
elainealbrich@dwt.com
On behalf of Applicant Lava Terrace Cellars, LLC ("Lava Terrace" or "Applicant"), we
respectfully request that the Board of County Commissioners ("Board") delay deliberations and
re -open the record for Appeal File. No 247-24-000018-A to allow for the introduction of
additional evidence related to the appeal issues.
Specifically, we propose the following schedule for your consideration:
• Reopen the record at May 29, 2024 meeting for new evidence related to the appeal issues
(allowing Applicant and Appellant opportunity to submit evidence);
• Allow open record period through July 31, 2024;
• Hold a hearing on the new evidence on August 7, 2024;
• Grant a second 7-7-7 period following the August 7, 2024 hearing; and
• Schedule deliberations and final decision for date certain after Labor Day.
We maintain that reopening the record to allow for additional evidence, particularly new
evidence related to Lava Terrace's ongoing work on its site plan, right-of-way boundaries, and
survey results, will provide for a better record and offer additional evidence to support resolving
the pending appeal issues.
DWT.COM
Anchorage I Bellevue 1 Los Angeles I New York
Portland 1 San Francisco I Seattle I Washington, D.C.
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May 21, 2024
Page 2
Thank you for your consideration.
Respectfully truly yours,
Davis Wright Tremaine LLP
/Z' 06;41-
Elaine R. Albrich
cc: Duane and Dina Barker
Phil Henderson
4889-2724-5760v. 10116943-000001