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2025-141-Order No. 2025-016 Recorded 5/13/2025REVIEWED —, LEGAL COUNSEL Recorded in Deschutes County CJ2025-141 Steve Dennison, County Clerk Commissioners' Journal 05/13/2025 10:45:07 AM .�,�.�°�--- II I I NI II I11 II I � II I II i III I I III : , 2025-141 For Recording Stamp On BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Order Denying Review of the Hearings Officer's Decision in File No. 247-25-000093-A ORDER NO. 2025-016 WHEREAS, on April 10, 2025, the Hearings Officer found as part of File No. 247-25-000093- A the Declaratory Ruling decision made under File No. 247-23-000302-DR does not amount to a collateral attack on the Deschutes County Board of County Commissioners ("Board") 1999 Weigh Station Decision; and WHEREAS, on April 23, 2025, the Windlinx Ranch Trust, the Appellant, appealed (Appeal No. 247-25-000264-A) the Deschutes County Hearings Officer's Decision on File No. 247-25-000093-A; and WHEREAS, Sections 22.32.027 and 22.32.035 of the Deschutes County Code ("DCC") allow the Board discretion on whether to hear appeals of Hearings Officers' 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 on appeal Appeal No. 247-25-000264-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. 247-25-000093-A, as presented at the following website: https://www.deschutes.org/cd/page/247-25-000093-odot-lava-butte-trail- remand ORDER NO. 2025-016 +�L- DATED this day of ARM f 2025. ATTEST: Re cording Secretary BOARD OF COUNTY COMMISSIONERS PHIL CHANG, Commissioner ORDER NO. 2025-016 { BOARD OF �� COMMISSIONERS MEETING DATE: May 7, 2025 SUBJECT: Board Order 2025-016; Decision whether to hear an appeal of a Hearings Officer's remand decision associated with the zoning designation for the ODOT Lava Butte Trail RECOMMENDED MOTIONS: Move approval of Order 2025-016, an Order accepting review of the Hearings Officer's Decision in File No. 247-25-00093-A and establishing the review will be heard de novo. MOTS Move approval of Order 2025-016, an Order denying review of the Hearings Officer's Decision in File No. 247-25-000093-A. BACKGROUND AND POLICY IMPLICATIONS: In 2023, the Oregon Department of Transportation ("ODOT") initiated a Declaratory Ruling application requesting interpretations of the Deschutes County Code ("DCC") to determine the zoning requirements for a path starting at the Baker -Knott Road/Highway 97 intersection and terminating at the Lava Butte Visitor Center (see attached map). As part of the original review, the Hearings Officer concluded the following: 1. The subject Highway 97 right-of-way is zoned RR10. 2. The proposal as described bythe applicant is a "road and street project" and, more specifically, a Class III project. 3. As a Class III project, the proposal described by the applicant is a use permitted outright in the RR10 Zone and OS&C Zone. This decision was appealed to the Land Use Board of Appeals ("LUBA") and the Oregon Court of Appeals and was remanded back to the County on one issue: The County is required "to adopt adequate findings addressing [the Windlinx Ranch Trust] argument that the application is a collateral attack on the final and unappealed Weigh Station Decision". The referenced Weigh Station Decision was a 1999 Board decision denying a conditional use request for an ODOT weigh station and, as part of this decision, the Board found the same segment of Highway 97 was zoned Forest Use ("F2"). On February 12, 2025, ODOT initiated a remand application, and on April 10, 2025, the Hearings Officer issued a decision with additional findings and concluded the Declaratory Ruling decision does not amount to a collateral attack on the Weigh Station Decision. The Windlinx Ranch Trust has filed an appeal of this decision and asks the Board of County Commissioners to review the appeal. BUDGET IMPACTS: None ATTENDANCE: Anthony Raguine, Principal Planner William Groves, Planning Manager Legal Counsel MEMORANDUM TO: Board of County Commissioners FROM: Anthony Raguine, Principal Planner DATE: April 28, 2025 RE: An appeal of the Hearings Officer's Remand Decision associated with the zoning designation for the ODOT Lava Butte Trail; Remand File No. 247-25-000093-A and Appeal No. 247-25-000264-A On May 7, 2025, the Board of County Commissioners ("Board") will consider hearing an appeal of the Hearings Officer's remand decision that included additional findings and concluded again a segment of the Oregon Department of Transportation ("ODOT") Lava Butte Trail is zoned Rural Residential ("RR10"). 1. DECLARATORY RULING APPLICATION ODOT ("Applicant") filed a Declaratory Ruling application requesting interpretations on multiple issues in which it asserts there is doubt or dispute over the meaning or application of the County's Comprehensive Plan or Deschutes County Code ("DCC"). The requested interpretations are associated with the zoning requirements for a future ODOT path starting at the Baker -Knott Road/Highway 97 intersection and terminating at the Lava Butte Visitor Center. The proposed path parallels Highway 97 and accesses the High Desert Museum before continuing south onto federal lands (see attached Location Map). The proposed path will be designed to serve bicycle and pedestrian users and will be called the Lava Butte Trail. As part of the original review, the Hearings Officer concluded the following: 1. The subject Highway 97 right-of-way is zoned RR10. 2. The proposal as described by the Applicant is a "road and street project" and, more specifically, a Class III project. 3. As a Class III project, the proposal described by the Applicant is a use permitted outright in the RR10 Zone and OS&C Zone. 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 II. PROCEDURAL HISTORY In 2023-2024, the County completed the initial review, and the Windlinx Ranch Trust ("Appellant") appealed the County's decision to the Land Use Board of Appeals ("LUBA") and the Oregon Court of Appeals. Ultimately, the Hearings Officer's decision was remanded back to the County on one issue - "to adopt adequate findings addressing [Appellant's] argument that the application is a collateral attack on the final and unappealed Weigh Station Decision". The referenced Weigh Station Decision was a 1999 Board decision denying a conditional use request for an ODOT weigh station and, as part of this decision, the Board found the same segment of Highway 97 was zoned Forest Use ("F2"). On February 12, 2025, the Applicant initiated the subject remand application. Since the Hearings Officer was the final decision maker in the previous review, the Hearings Officer was the initial reviewer for this remand application. After reviewing the submitted information, the Hearings Officer issued a decision with additional findings and concluded the Declaratory Ruling decision does not amount to a collateral attack on the Weigh Station Decision. III. WIN DLINX RANCH TRUST APPEAL The Appellant requests the Board review the Hearings Officer's decision, as part of a de novo review, to address the following key issues related to the template dwelling test requirements: 1. The hearings officer erred in not reopening the record on remand to allow new relevant evidence on the remand issue that should have been but was not placed in the record. To the extent that the Hearings Officer had discretion on whether or not to reopen the record he abused that discretion. 2. The Hearings Officer erred in concluding that ODOT's request for a declaratory ruling that the zoning of the subject property was RR-10 and not F-2 as previously determined by the Board was not a collateral attack on the Board's prior 1999 final decision. 3. The Hearings Officer committed a procedural error in not disclosing facts related to his spouse's work with ODOT and his prior position on a bicycle advocacy group when the application before him was from ODOT and was to facilitate the construction of a facility for bicycling. IV. STAFF RECOMMENDATION Staff recommends the Board not hear the appeal for the following reasons: 1. The Hearings Officer's decision is well written and reasoned, and could be supported, as the record exists today on appeal to LUBA. 2. The County's review of a remand application must be completed within 120 days and the County's final decision must be made by June 12, 2025. Therefore, it is unlikely there will be 247-25-000093-A / 247-25-000264-A Page 2 of 4 sufficient time for thc Board to hear the subject appeal, accommodate an open record period, complete deliberations and finalize a decision within the 120-day deadline. 3. Both parties were well represented. V. BOARD OPTIONS First, the Board must decide if it wishes to hear the appeal. In determining whether to hear the appeals, the Board may only consider: 1. The record developed before the Hearings Officer; 2. The Notice of Appeal; and 3. Recommendation of staff' Option 1: Hear the Appeal If the Board decides to hear the appeal, the Board must make a decision on the scope of the review. As noted above, the Appellant has requested a de novo review. Per the Deschutes County Code ("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 should give staff direction on when to schedule the appeal hearing and the Board may want to establish time limits for testimony at the hearing. Option 2: Not Hear the Appeal Should the Board decline to hear the appeal, the Hearings Officer's decision will become the final decision of the County. Upon the mailing of the Board's decision to decline review, the party appealing may continue their appeal as provided under the law. VI. 120-DAY LAND USE CLOCK The 120t" day on which the County must take final action on this application is June 12, 2025. ' Deschutes County Code 22.32.035(D) 247-25-000093-A / 247-25-000264-A Page 3 of 4 VII. RECORD The record for File no. 247-25-000093-A and the Notice of Appeal are presented at the following Deschutes County Community Development Department website: https://www.deschutes.org/cd/page/247-25-000093-odot-lava-butte-trail-remand Attachments: 1. Location Map 2. Hearings Officer's Decision - 247-25-000093-A 3. Notice of Appeal - 247-25-000264-A 4. DRAFT Board Order 2025-016 Accepting Review of the Hearings Officer's Decision 5. DRAFT Board Order 2025-016 Declining Review of the Hearings Officer's Decision 247-25-000093-A / 247-25-000264-A Page 4 of 4 APPEAL APPLICATION FEE: $ 5 ,tsc� EVERY NOTICE OF APPEAL SHALL INCLUDE: 1. A statement describing the specific reasons for the appeal. 2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the reasons the Board should review the lower decision. 3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of Title 22. 4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall also be provided, It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code. The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all of the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal. Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section 22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues. Appellant's Name (print): Windlinx Ranch Trust Phone: (541) 410-0191 Mailing Address: 59850 Scale House Road City/State/Zip: Bend, OR 97702 Land Use Application Being Appealed: 2 7- 5 000093-A Remand 18S 2E 19,30&31 Property Description: To Fj p a 11 ion 3s _Tax Lot 181100001900 Appellant's Signature: ' 1 =— '--- EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD). APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS. (over) 117 NW Lafayette 1,venue, Bend, Oregon 97703 i P-O. Box GODS, Bend, OR 97702-6005 'Q (54 }) 3188-6575 (a7 rr!d rie cF utes .o g Rev 5/18 NOTICE OF APPEAL Please see attached Appeal Statement. (This page may be photocopied if additional space is needed.) 11 7 NW Lafayette Avenue, Bend, Oregon 97703 ( P.O. Box 6005, Bend, OR 97708-6005 J� (541) .388-6575 @ cdd@deschutes.org @ www.deschutes.org/cd Agneal Statement - 247-25-000093-A (Remand) Background: The Board of County Commissioners (the "Board") conclusively declared that the zoning on the subject property is F-2. In an application process that began in 1994 and culminated with a conditional use permit application in 1998 (CU 98-109), ODOT applied for a development permit that included the same property. It represented that the ODOT ROW adjacent to the appellant's property is zoned F-2. Staff and the hearings officer agreed. In its June 1999 decision, the Board determined in a final decision that the dividing line between the RR-10 zoned property on the west of Highway 97 and the F-2 property on the east was the center of the highway rit-of way. The County Board applied DCC 18.12.040 as written. Unless otherwise specified, zone boundaries are section lines, subdivision lines, lot lines, center lines of street, and railroad rights -of -way. All participants in the 1999 decision accepted that the boundary line between the RR-10 and F-2 zones is the center of the Highway 97 right-of-way. ODOT filed an application for a declaratory ruling asking the hearings officer to reverse that determination. It requested that the hearings officer find that the dividing line between the zones is the west property line of the appellant's property. Appellant asserted, among other arguments, that ODOT's application was not proper and constituted a collateral attack on the Board's 1999 final decision. The hearings officer approved ODOT's application. Appellant here appealed that decision to LUBA. LUBA affirmed the hearings officer on all grounds except appellant's collateral attack argument reminding the decision for the hearings officer to address that argument. At the remand hearing appellant requested that the hearings officer reopen the record because after the record in the original proceeding was closed, appellant obtained documents in an open record period that were highly relevant to the collateral attack argument. The hearings officer denied that request and ultimately decided that ODOT's application, even though it requested that he revisit and change the determination made in 1999, was not a collateral attack on that final decision. Grounds for Appeal: 1. The hearings officer erred in not reopening the record on remand to allow new relevant evidence on the remand issue that should have been but was not placed in the record. To the extent that the hearings officer had discretion on whether or not to reopen the record he abused that discretion. 2. The hearings officer erred in concluding that ODOT's request for a declaratory ruling that the zoning of the subject property was RR-10 and not F-2 as previously determined by the Board was not a collateral attack on the Board's prior 1999 final decision. 3. The hearings officer committed a procedural error in not disclosing facts related to his spouse's work with ODOT and his prior position on a bicycle advocacy group when the application before him was from ODOT and was to facilitate the construction of a facility for bicycling. Page 1 - Appeal Statement - 247-25-000093-A (Remand) Explanation of grounds of appeal After the record in the original proceedings was closed, appellant obtained records from ODOT pursuant to a public record request. Included in the documents were memoranda and emails that help demonstrate that ODOT understood and agreed that the Board's prior 1999 decision determining that the zoning of the subject property was F-2 was a final and binding decision and that to avoid it, ODOT had to develop a ruse to collaterally challenge that decision. Appellant submits that the subject records should have been included in the record specifically because early in the application process appellant asserted to the County that ODOT was not allowed to use a declaratory ruling application to challenge the 1999 final decision. The hearings officer should have reopened the record pursuant to appellant's request and allowed the use of that relevant evidence. The hearings officer's decision that the ODOT application was not a collateral attack on the prior decision misconstrues the law. He focused on the fact that the prior decision was not an approval that was being challenged but rather a denial. That has no relevance. The 1999 decision applied the County code provision on how zoning boundaries must be determined and conclusively established that the zoning on the subject property was F-2. Nothing has changed since that time. The same zoning maps apply, and the relevant code provision has not changed. In fact, one of the pieces of evidence that the hearings officer did not allow into the record on remand was a memo from Senior Transportation Planner Peter Russell that included the same GIS maps that ODOT asserted were more accurate and showed that the zoning was RR-10. Mr. Russell concluded, based on the same GIS maps that ODOT relied upon, reaffirmed that the zoning on the subject property is F-2. Appellant asserts that the hearings officer should have disclosed his spouse's past and ongoing work with ODOT. As a former ODOT employee and currently the Senior Transportation Advisor to the Governor, the hearings officer's spouse works with ODOT on transportation issues. MOT is the applicant in this matter. Further, the hearings officer was formerly on the Board of Directors of a bicycle advocacy group. The ODOT application sought a declaratory ruling to facilitate the construction of a bicycle facility. Appellant was not afforded an opportunity to object to the hearings officer's participation because those facts were not disclosed. Reasons that the Board should accept this appeal: The compelling reason that the Board should hear this appeal is to set forth the County's position on the integrity of all Board decisions. If applicants are allowed to challenge the Board's decision by seeking declaratory rulings in cases that override the Board's prior final decisions, the Board's status as the County final decision maker is undermined. Any hearings officer can effectively overrule the Board's prior decisions for any reason. That will result in a system where the Board must hear and decide numerous appeals to just uphold the sanctity of its decision -making process and its prior decisions. The County land use decision making process cannot function if hearings officers have the ability to overrule the Board. This is not a matter that is appropriate to resolve in a LUBA appeal. Neither a hearings officer nor LUBA should be deciding the location of the official zoning boundaries. That is a matter uniquely within the purview of the Board. In addition, LUBA is not the proper body to address the larger policy issue over a hearings officer's authority to undo prior Board decisions on the location of official zoning boundaries. Page 2 - Appeal Statement - 247-25-000093-A (Remand) De Novo Review: The Board should conduct a de novo review because relevant material was not included in the record as appellant explained above related to its prior request that the hearings officer reopen the record. Page 3 - Appeal Statement - 247-25-000093-A (Remand)