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HomeMy WebLinkAbout2014-06-04 Business Meeting Minutes Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 1 of 24 For Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JUNE 4, 2014 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ Present were Commissioners Tammy Baney, Anthony DeBone and Alan Unger. Also present were Tom Anderson, County Administrator; Dave Doyle and Laurie Craghead, County Counsel; Nick Lelack, Kevin Harrison and Peter Russell, Community Development; Wayne Lowry and Christina Partain, Finance; Chris Doty, Road Department; Sheriff Larry Blanton, Darryl Nakahira, Capt. Erik Utter, Sgt. Nathan Garibay and several other members of the Sheriff’s Office; and approximately a dozen other citizens. Chair Baney opened the meeting at 10:02 a.m. __________________________ 1. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT None was offered. 3. Before the Board was Consideration of Approval of Grant Applications for the Sheriff’s Office. Document No. 2014-328, the Annual Justice Assistance Grant (JAG) Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 2 of 24 Capt. Erik Utter said they identified three areas where this grant funding would be used. One would be an alarm system that helps them in areas where there are repeated crimes, but they can also partner with Victims’ Assistance to help individuals who may be at risk. Another is an encryption program with some of their radios, which would help with surveillance communications. They would like to purchase another dual band radio for backup purposes, and for Search and Rescue work. This grant will help them round out their operational equip ment. UNGER: Move approval of County Administrator signature of Document No. 2014-328.. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. __________________________ Document No. 2014-327, Pre-disaster Mitigation Plan Update Grant (FEMA/Oregon Emergency Management). Sgt. Nathan Garibay spoke about the current program, which is a requirement of FEMA to be eligible for funding. This affects the wildland fuels program and other mitigation efforts. The State of Oregon had a $250,000 amount set aside for this, and Deschutes County will be applying as a sub-applicant. There is a 25% match on this grant but this can be done in kind through staff work. They have to update this every five years, but best practice is to keep doing this on an ongoing basis. The strategy is to include all cities in the effort, and historically Sisters and La Pine have been involved. He anticipates the participation of the other cities as well. DEBONE: Move approval of County Administrator signature of Document No. 2014-327. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 3 of 24 4. Before the Board was Consideration of Board Signature of Document No. 2014-297, a Notice of Intent to Award Contract Letter for Janitorial Services for the Sheriff’s Office. Lt. Daren McMaster and Darryl Nakahira explained the item. This comes after a bid process that included nine companies. Four companies made formal proposals. A board met to review the proposals, three interviews were done and the companies were scored based on certain criteria. Cascade Complete Cleaning Services currently cleans the Sheriff’s Office and had the best bid for this work. They take care of the main Sheriff’s Office and the employee portion of the Jail, the Terrebonne and Sisters sub-station, the automotive offices and Search and Rescue. UNGER: Move Board signature of the intent to award letter. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 5. Before the Board was Consideration of Board Signature of Documents Related to the La Pine Land Conveyance Act of 2012, through the Bureau of Land Management. James Lewis stated this is a follow-up to the conveyance of patents addressed a couple of months ago. The patents were recorded and the County is to convey the properties to the various entities involved. He explained the various documents at this time. Commissioner DeBone said this was voted on by the federal legislature years ago but it has taken years to complete the process. This finalizes what was started many years ago. Document No. 2014-294, Granting an Easement to Midstate Electric Cooperative, La Pine DEBONE: Move approval of Document No. 2014-294. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 4 of 24 VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. __________________________ Document No. 2014-251, a Bargain and Sale Deed to the City of La Pine UNGER: Move signature of Resolution No. 2014-251 DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. __________________________ Document No. 2014-259, a Bargain and Sale Deed to the La Pine Park and Recreation District DEBONE: Move approval of Document No. 2014-294. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. __________________________ Document No. 2014-264, a Bargain and Sale Deed to Midstate Electric Cooperative, La Pine UNGER: Move signature of Document No. 2014-264. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 6. Before the Board was a Public Hearing and Consideration of Board Signature of Resolution No. 2014-052, Adopting the Fiscal Year 2014-15 Fee Schedule for Deschutes County for 2014-15. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 5 of 24 Chair Baney opened the public hearing. Christina Partain gave an overview of the Resolution. All changes to the schedule were as discussed at the work session in April, and notice was properly provided. There has been no public input. Being no testimony, the hearing was closed. Commissioner Unger said that they attempt to keep up with inflation, with more frequent small raises rather than large ones. They need to keep up also with the cost of appeal fees. Commissioner DeBone stated that the Builder’s Association, Bulletin Editorial Board and others to make sure the fees are appropriate. There were some changes in Health Department fees but these are due to changes in overall health care. All were carefully evaluated. Chair Baney noted that the Community Development Department is fee supported, so the appeal fees have to stay in line with this. They look at the actual cost of service and remain below those of other agencies. Commissioner Unger added that good service means timely service. DEBONE: Move approval of Document No. 2014-294. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. 7. Before the Board was Consideration of Second Reading by Title Only, and Adoption, of Ordinance No. 2014-003, Amending Code regarding Presumptive Fines for Violations. Laurie Craghead noted that the first reading was over two weeks ago and can proceed. There is one change based on comments from the Commissioners. She added a new Whereas clause in the ordinance. The motion is to move second reading by title only of the Ordinance, including what was read by staff. The effective date would be ninety days from now. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 6 of 24 Commissioner DeBone said the intention is for voluntary compliance. Ms. Craghead stated that this affects not just CDD but a few other departments. UNGER: Move second reading by title only and as ready by staff. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the second reading by title only, as amended. DEBONE: Move adoption as amended. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. 8. Before the Board was Consideration of Second Reading by Title Only, and Adoption, of Ordinance No. 2014-004, Amending Code regarding Fines to be Consistent with Oregon Revised Statute. Ms. Craghead said this is to be consistent with the other, and nothing has changed in this Ordinance. UNGER: Move second reading by title only. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the second reading by title only. DEBONE: Move adoption. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 7 of 24 9. Before the Board was a Public Hearing and Consideration of First Reading by Title Only of Ordinance No. 2014-017, Amending Title 17, Changes to the County’s Traffic Study Requirements. Chair Baney read the opening statement and declared the hearing open. The Commissioners had no conflicts of interest to disclose, and there were no challenges. Peter Russell provided an overview of the item. The changes are to make the standards and language consistent throughout and to comply with statute. This addresses situations where it is not felt that a study is appropriate, and gives discretion to the Road Engineer and others. Chair Baney stated that it can be costly to address this kind of thing, and should only be necessary when it is appropriate. Commissioner Unger appreciates them organizing Code to make it easier for the public to locate information. This is a floor and some things can be managed in other ways. Being no testimony offered, Chair Baney closed the hearing. UNGER: Move first reading by title only of Ordinance No. 2014-017. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Chair Baney conducted the first reading by title only. 10. Before the Board was a Public Hearing and Consideration of First Reading by Title Only of Ordinance No. 2014-001, Amending Title 18, Changes to the County’s Traffic Study Requirements. Chair Baney opened the hearing. Being no testimony offered, she closed the hearing. DEBONE: Move first reading by title only of Ordinance No. 2014-001. UNGER: Second. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 8 of 24 VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Chair Baney conducted the first reading by title only. 11. Before the Board was Consideration of Board Signature of Documents No. 2014-286 and 2014-287, Farm and Forest Management Easements that were Required for a Medical Hardship Dwelling in the Exclusive Farm Use Zone. Laurie Craghead stated that this involved a temporary hardship dwelling which has since been removed, and these documents are required at this time to remove the easements. The reason for these documents is no longer there. The property owner asked to meet with staff at this time. When Ms. Craghead returned, she said she discussed this issue with the property owner and all is acceptable. The property owner nodded approval. UNGER: Move signature of Documents. No. 2014-286 and No. 2014-287. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 12. Before the Board was a Public Hearing on the Appeal of the Hearings Officer’s Decision on Application No. A-13-8, regarding Whether the Conceptual Master Plan Approval for Thornburgh Destination Resort Has Been Initiated. Chair Baney opened the public hearing at this time, and Kevin Harrison read the opening statement. This is a de novo hearing only on whether the app licant complied with a certain section of Code. Regarding ex parte contact, bias or conflicts of interest, the Commissioner declared none. No one challenged the Commissioners on this basis. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 9 of 24 Ms. Craghead said this is quasi-judicial, and the process is to hear from the applicant, then from those who wish to testify. Any statements not made preclude not being able to bring this up on appeal or in Circuit Court. The Chair at her discretion can convey questions from others to the applicant or others who testify. The record could be left open if so desired. Mr. Harrison explained this has to do with whether the CMP has been initiated. If it has, there is no expiration date. If it has not been initiated , the applicant has no standing. He explained who the applicant and opponents are. He indicated the file is available for review. The Board’s Order specified a de novo hearing only on the one criterion. There was a work session and the material was review, along with criterion and relative conditions of approval. He indicated what materials were included in this review. He has the entire file available, and the LUBA record is available on line. He noted the materials that has been received since the appeal was filed until today. He also has a copy of the PowerPoint presentation that the applicant will do today. August 3, 2014 is the statutory deadline on this kind of proceeding. Chair Baney reminded the audience to fill out a testimony sheet today if they wish to talk. They won’t go through the relevancy of whether a destination resort is feasible or desirable, but only will address the specific criterion that is on appeal. __________________________ David Petersen, attorney, said he is representing the applicant, Loyal Land LLP. He provided some additional documents that he would refer to during the presentation. He also had a color-coded timeline map to include. He said the timeline is crucial. It is a complex project and has been around a long time. Chair Baney asked that his presentation take no longer than 30 minutes. He agreed. He referred to the presentation at this time. The Hearings Officer noted that there were ambiguities in the LUBA decision. The Board is not bound by this decision like the Hearings Officer is. The Board can interpret Code as appropriate, and can consider new evidence. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 10 of 24 There is a three-step process for destination resorts: CMP, FMP and individual site plan review for each phase. Code allows the CMP to be the framework for development. Many have been approved and developed under this process. The Hearings Officer’s decision replaces the three-step process with the generic Code provision that it has to be approved within two years. The heart of the problem is that this is not consistent as a framework. Ms. Gould supports this because she wants to eliminate or prohibit any complex developments here. The CMP was applied for in 2005, appealed in 2006, final approval after LUBA in 2008, and additional trips including the Supreme Court, so there were over 1,000 days from the initial action. This cost over $2.2 million. The application was filed in 2008 right after the CMP was approved, and 19 to 20 months before the CMP became final. The FMP was approved, but there were two more years of appeals, and it was remanded back in 2010 regarding wildlife mitigation sites. Nothing could happen to this remand until 2011 when the BLM identified those. The Hearings Officer said she could not consider that date. Between the filing of application and the remand in 2010, it took well over two years, at a cost of $1.5 million. Other permits had to be obtained, at an additional cost of $1 million, plus the access road was built on BLM land. Ms. Gould unsuccessfully appealed two of these permits. Most land was acquired by foreclosure, and they filed an application to determine if the CMP was current. LUBA said it had expired retroactively. The Hearings Officer determined the CMP had been initiated, but that was appealed, then remanded back, and the Hearings Officer determined it had not been per LUBA. As is standard for the Board, there are two key elements of the test. Conditions of approval were substantially exercised, or any failure to do so was not the fault of the applicant. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 11 of 24 There were 41 conditions of approval. Some were added or replaced. The Hearings Officer found 19 were fully exercised. One is the wildlife mitigation condition. This leaves 21 conditions of approval. With respect to the fault of the applicant, the Hearings Officer said the conditions were contingent on later land use approval; these were conditions that were not yet addressed. This was done as a whole with a judgment being made on this basis. She could not reach the conclusion these were substantially exercised. There were three errors of the Hearings Officer. Many are not contingent conditions at all. Many are restated as descriptions for future action in the FMP or final conditions. This directly contradicts the three-step permit process squeezed into two years. This is essential undoing the entire process. The process has been applied many times in other extended projects. This directly contradicts the ten to twelve year phasing plan into two years. The second error is not supported by DCC 22.36.020.A.3. This does not talk about fault and contingencies Contrary to LUBA 2012-042, it is not the fault of the applicant that the contingency may not exist or cannot yet exist. This rewrites Chapter 18.113, the contingency has not yet occurred but has to do with the final approval or later land use approvals. This is not in the two- year window. It does not make sense if you are to follow the three-step process. It would then apply to all projects in which the two-year window is not possible for complicated projects. The Hearings Officer started the two-year time in 2009, but subsequent appeals caused an 849-day delay that she did not consider. The consequences of this decision compresses the work into two years, which makes all 2 years, makes complex multi-phased projects impossible. The applicant in effect has veto power, as they use the two-year time in appeals. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 12 of 24 Specific to Thornburgh, the applicant has to get approval if the project changes, but all this was to be done within two years and not in the ten to twelve year period. Stating that the applicant is at fault for not meeting timelines due to appeals. There was a delay in BLM identification of wildlife mitigation information, during which time the applicant could do nothing. This left less than nine months to do everything else. There were numerous appeals of decisions. The Hearings Officer said this can’t be the applicant’s fault. There were delays that took a lot of time. The overwhelming number of appeals were denied. The destination resort approval process is complex itself, and can not be realistically handled within two years. However, the opponent has suggested that the applicants were not acting in good faith. They took significant risk in pursuing the project. Between the BLM requirements in February 2011 and the expiration in November 2011, this was all supposed to be handled. They were expected to take unreasonable risks, but even then the timeline was not possible. Most important was the great recession. The Hearings Officer found no causal link with this. She could not accept new evidence but there is substantial evidence of this. The Hearings Officer said there was no direct connection between the economy and Thornburgh’s finances. An analyst concluded that this was a major factor. Between 2007-2011, the average prices at destination resorts dropped 79%, and sales dropped from 56 to 3. The market died. This project was not immune to this, and went from $50 million to $8 million drop in property value of the property. The note for the property was actually bought for $4 million after foreclosure. Even if they tried to pursue development during that time, the timeframe still did not fit. It is absurd to think they could have done this without a market for the product, no ability to refinance, etc. It is also not reasonable to say the applicant was not somewhat responsible for this not moving along. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 13 of 24 The Hearings Officer suggested that Jeff Parker had a financial interest. He does not. It was suggested that Loyal Land and Mr. Larsen brought it down, but he had not even heard of this project until 2011. There are a few additional errors. One is full compliances vs. fully exercised. The Hearings Officer called it performance, synonymous with compliance. All new road names have to be reviewed. So what does it mean to be ful ly compliant? The applicant had not obtained road name approval. All these conditions could not be exercised, but depended on further land use approvals that could not yet be obtained. It also says ANY failure makes them at fault. It is a one strike and you are out. The Hearings Officer found four conditions that were too prohibitive in nature. The Hearings Officer eliminated any mention of the word ‘substantial’. This is the ultimate exercise of a condition needing prerequisite acts that could not yet be done. The Hearings Officer said ‘substantially exercised’ meant ‘fully exercised’. Some were determined more important than others, but this is not in Code. Under relentless pursuit, everything that could be performed at this point has been. The Hearings Officer’s decision prioritized the general over the specific and cut the time short. There needs to be a better approach, In her first decision, they were okay. She changed her mind about conditions that could only be subsequent. She was forced by LUBA, but they had misinterpreted. The best approach is to harmonize code into a comprehensive and coherent whole and allows destination resorts to be subject to reasonable rules. This was the original Hearings Officer decision. Those conditions that can be exercise prior to FMP are the only ones that they should consider. He concluded that this has been a substantial injustice to the applicant. They need a sensible and balance interpretation of Code. His presentation concluded at 11:40 a.m. __________________________ Paul Dewey, representing the opponent, provided a handout. He requested an opportunity to respond to the additional material. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 14 of 24 He said that appeals of this kind try to make issues appear as broad and precedence setting. This was a complete affirmance of LUBA and the Court of Appeals. They pointed out that this hinged on the wording of the CMP decision and how it was written with conditions of approval. They should not be addressing this because it does not have precedential value. LUBA said to avoid other problems, the County was to put certain words in the decision to make contingencies not binding. But in this particular case, regarding how the CMP was written, it was not a problem with Code but with the case. The history is why the conditions of approval are so important. They are there because the applicant was not satisfying the conditions of the CMP. A major one was the wildlife mitigation plan. These are not discreet elements. There are linkages to the CMP and FMP. All of the subsequent approvals had to be necessarily involved with the CMP. Regarding Code sections, “conceptual” sounds vague. That is not how the Code works. The CMP has many pages of approvals. The FMP is to make sure it is consistent with the CMP. It is a framework in Code, but he feels it is the guts of the entire thing. This is not an override of the three-part process. There are unique facts to this case, one of them being fault. It comes down to the applicant not doing anything since the remand in 2010, claiming nothing could be done because they were waiting for BLM. They should have done this themselves. Assuming they had to wait for BLM in February 2011, they did not do anything with that. Still haven’t applied for the final master plan. They claim the remand involves minor issues but this held them up. They should have shown good faith to move it forward. The Hearings Officer found that it was possible to get approval of the FMP on two phases if they had proceeded. He presented a timeline as well. There were various appeals and remands. There is a process if a permit needs an extension, and the applicant can apply for this. There were no extension here. The appeal of Hearings Officer’s decision is an end-run on this. They should have known they could apply for extensions. They wanted the County to hold the extensions aside for a while. There were changes in ownership during this time. Chair Baney reminded all that today’s meeting needs to end by 12:15 p.m. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 15 of 24 Mr. Dewey asked if the County should have to do more if the applicant has not availed itself when it could. He is conflicted about the liberal extension policies. This is ten years old and the transportation analysis and economic study are outdated. A party should have to avail itself of them. They can’t blame this on the economy or the BLM or his client. The true issue is whether the applicant is at fault for all of this. It sounds often like his client is at fault for filing appeals. There were a number of times that LUBA and Court of Appeals ruled in her favor. Commissioner Dennis Luke voted against the CMP at the time because it was incomplete. Much was deferred to the conditions of approval. Commissioner Clarno said the 2 to 1 ratio information was inconsistent. Staff directed their attention to it. They found it difficult to arrive at a conclusion due to inconsistent and incomplete information. The Court of Appeals remanded back on the wildlife mitigation plan as not being complete. The applicant wanted this at the FMP level. This was not the fault of his client filing appeals. There were a number of arguments that the Hearings Officer made interpretations, but it was LUBA and Court of Appeals making them. The Hearings Officer the first time around said only the CMP was relevant. She was overruled. It is not appropriate that the Board could overturn this. LUBA decided that if there is any condition of approval not fully exercised, they have to determine fault. If it is not their fault, they are absolved. This is not logical. There is an argument that full resort construction is necessary in under two years. LUBA said that kind of characterization is not accurate. They have to substantially comply. The Hearings Officer put a lot of work into analyzing the conditions. They could have done a lot, even initiating a remand to advance the satisfaction of the CMP. Also mentioned by Loyal Land was that it will impair their ability to pursue a remand. When, from a policy perspective, they are to make sure this gets done in a timely manner. It is not appropriate that the applicant can avoid not doing anything to trigger other things. Ten years later they say they have initiated their use, but they still have not completed some of the basics of the CMP. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 16 of 24 This is not broad, and is in fact, specific. The Hearings Officer’s decision was thorough. The principal determination of fault is clear; they did not initiate remand when they could have. They did not seek five years of extensions. There was substantial infighting and bankruptcy back to 2006. There was an incomplete application at the time. They spent a lot of money, but can still be at fault for not having a better CMP in the first place and pursuing it. Mr. Dewey’s testimony concluded at 12:08 p.m. __________________________ Mr. Peterson came forward for rebuttal. He said it is a question of the extension applications. An extension was granted in November 2011 for a year. However, the initial decision of the Hearings Officer said the original extension expired in December 2011. LUBA said in January 2013 that it expired in November 2011 instead. LUBA backdated in the e-mail. The concept of fault is crucial, not just an accidental mishap. This was an honest mistake, as they acted under the Hearings Officer’s authority, which was changed by LUBA. They are trying to get back to the original CMP approval. Ms. Gould has a right to appeal, but those caused delays and expense, and uncertainty for the applicant and lenders. It does not mean the applicant should ignore those risks. LUBA and the Court of Appeals are not the governing bodies of Deschutes County, and the Board can decide what its Code means. Since 2006 when the CMP was first approved, there was only a nine-month period when this project was not under some kind of appeal. Half of that window was lost to the BLM appeal. They tried to move forward even when it was under appeal. They should not be punished for not doing this again. Even if they had done this then, it would not have satisfied the Hearings Officer, since she required approval of the FMP and subsequent actions that were not possible. The FMP may have been again appealed. Chair Baney said they requested an extension in November 1, 2011, and it was granted for a year. The Hearings Officer in April 2012 said the CMP expired on December 7, 2011. They filed for another extension then. In November 2013, LUBA said it was filed on November 18, so the time was shortened. The second extension was then late by 18 days so the applicant withdrew it. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 17 of 24 She said that on the basis of recession and complexities, the opportunity to discuss this had been removed. The applicant’s attorneys at the time were different, and by virtue of LUBA, the second application was rendered untimely. Ms. Craghead said that LUBA made the decision regarding the backdating because the extension application was also appealed. The first was appealed as well. They appealed to the Board and not LUBA. Chair Baney asked if they should leave the record open. Ms. Craghead stated they can leave the record open regarding what was presented today, then a rebuttal period with no new evidence, and final rebuttal of the applicant. They need to mail out a decision no later than August 3, 2014. Chair Baney would like to have a work session with a matrix prior to deliberations. It was decided that all testimony needs to be submitted no later than 5 p.m. on June 25, 2014.  The first period for submittal ends at 5 p.m. on June 11.  Rebuttal from any party, with no new evidence, is 5 p.m. on June 18.  Final applicant rebuttal with no new evidence is 5 p.m. on June 25.  A work session will be held on June 30, with deliberations on July 2 at the regular business meeting. Commissioner DeBone stated that the CMP is a big checklist of items, anything that the community wants to know about, expired or not. This gets them into the FMP part. He was not a Commissioner then, but knows about the recession and financial issues. He wants to know the overall history. Chair Baney said they need to follow the process and how it would apply to this situation. Commissioner DeBone observed that some projects worked out well, but this one ran into issues. He wants to compare and figure out how this one went off track. Ms. Craghead stated that for individual projects, the Board has never accepted financial difficulties as an excuse for performance. Usually the Board would accept an extension. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 18 of 24 Chair Baney asked why the extension was denied. Mr. Harrison said that it never made it to the Board but was handled by staff. It was appealed. Chair Baney closed the oral part of the hearing at this time. __________________________ Before the Board was Consideration of Approval of the Consent Agenda. Chair Baney said she has not yet been able to review the minutes of May 19. DEBONE: Move approval of the consent agenda except the minutes. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Consent Agenda Items 13. Board Signature of Document No. 2014-121, an Intergovernmental Agreement for Sheriff’s Office Law Enforcement Services in the City of Sisters 14. Board Signature of Resolution No. 2014-079, Approving the Assignment and Transfer of the Cable Television Franchise Issued to Bend Cable Communications/Bendbraodband to Telephone and Dat a Systems, Inc. (dba TDS Baja) 15. Board Signature of Document No. 2014-295, a Quitclaim Deed for 600 Square Feet to the City of Bend 16. Board Signature of Order No. 2014-016, Canceling Uncollectible Personal Property Taxes 17. Approval of Minutes:  Business Meeting: May 19, 2014  Work Session: May 19, 2014 CONVENED AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 18. Before the Board was Consideration of Board Signature of Resolution No. 2014-050, Transferring Appropriations within the Operating Funds. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 19 of 24 Wayne Lowry said Sunriver Service District had asked for this routine budget adjustment. DEBONE: Move approval. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. 19. Before the Board was Consideration of Board Signature of Document No. 2014-326, a Special Districts Insurance Services Form of Joinder to Trust Agreement. Dave Doyle explained the item, which has to do with insurance obtained by the Sunriver Service District. It is a clarification and housekeeping item. UNGER: Move signature of Document No. 2014-326. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. 20. Before the Board was a Public Hearing and Consideration of Board Signature of Resolution No. 2014-058, Adopting the Fiscal Year 2014-15 Fee Schedule for the Sunriver Service District. Chair Baney opened the public hearing. Christina Partain said there have been no changes since the previous discussion. No testimony was offered, so the hearing was closed. UNGER: Move signature of Resolution No. 2014-058. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 20 of 24 CONVENED AS THE GOVERNING BODY OF THE BLACK BUTTE RANCH COUNTY SERVICE DISTRICT 21. Before the Board was a Public Hearing and Consideration of Board Signature of Resolution No. 2014-053, Adopting the Fiscal Year 2014-15 Fee Schedule for the Black Butte Ranch County Service District. Chair Baney opened the public hearing. Ms. Partain said there were some changes but are as discussed at the April work session. Being no testimony offered, the hearing was closed. DEBONE: Move approval. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE COUNTYWIDE LAW ENFORCEMENT DISTRICT #1 22. Before the Board was a Public Hearing and Consideration of Board Signature of Resolution No. 2014-055, Adopting the Fiscal Year 2014-15 Fee Schedule for the Countywide Law Enforcement District #1. Chair Baney opened the public hearing. Ms. Partain stated that there were requested changes but were discussed at the April work session. Being no testimony offered, the hearing was closed. UNGER: Move signature of Resolution No. 2014-055. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 21 of 24 CONVENED AS THE GOVERNING BODY OF THE RURAL LAW ENFORCEMENT DISTRICT #2 23. Before the Board was a Public Hearing and Consideration of Board Signature of Resolution No. 2014-056, Adopting the Fiscal Year 2014-15 Fee Schedule for Rural Law Enforcement District #2 for 2014-15. Chair Baney opened the hearing at this time. Ms. Partain said there was one change to delete a fee, as disused at the April work session. Being no testimony offered, the hearing was closed. DEBONE: Move approval. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 24. Before the Board was a Public Hearing and Consideration of Board Signature of Resolution No. 2014-054, Adopting the Fiscal Year 2014-15 Fee Schedule for the 9-1-1 County Service District for 2014-15. Chair Baney opened the public hearing, and Ms. Partain stated there were no requested changes by 9-1-1 to the fee schedule. Being no testimony offered, the hearing was closed. UNGER: Move signature of Resolution No. 2014-054. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 22 of 24 25. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $35,056.06 (two weeks). DEBONE: Move approval. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 26. Before the Board was a Public Hearing and Consideration of Board Signature of Resolution No. 2014-057, Adopting the Fiscal Year 2014-15 Fee Schedule for the Extension/4-H County Service District for 2014-15. Chair Baney opened the hearing. Ms. Pertain said they requested no changes to the fee schedule. Being no testimony offered, the hearing was closed . DEBONE: Move approval. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. 27. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District in the Amount of $16,479.80 (two weeks). UNGER: Move approval, subject to review. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Minutes of Board of Commissioners’ Business Meeting Wednesday, June 4, 2014 Page 23 of 24 RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 28. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $1,057,928.04 (two weeks). DEBONE: Move approval. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. 29. ADDITIONS TO THE AGENDA A. Before the Board was Consideration of Board Signature of Order No. 2014-014, Repealing Order No. 2012-017 and Authorizing Designated persons to Provide Custody and Secure Transport Services for Allegedly Mentally Ill Persons. Deanne Carr said this repeals a previous Order and puts into place new designees under the new Director, Jane Smilie. UNGER: Move approval. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. __________________________ DEBONE: Move approval of additional consent agenda items. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Additional Consent Agenda Items B. Board Signature of a Letter Appointing Rick Root to the Deschutes County Bicycle and Pedestrian Advisory Committee, through June 30, 2015 C. Board Signature of Document No. 2014-330, an Addendum to a Real Estate Sale Agreement with Biogreen Sustainable Energy Co. D. Board Signature of Document No. 2014-324, the Annual Boating Safety and Law Enforcement Agreement between the Sheriffs Office and the State of Oregon Marine Board Being no other items brought before the Board, the meeting adjourned at 12:40 p.m. DATED this ~ 0 Day of 2014 for the T ~ Anthony DeBone, Vice Chair oJ~~ATTEST: Alan Unger, Commissioner ~~ Recording Secretary Minutes of Board of Commissioners' Business Meeting Wednesday, June 4 , 2014 Page 24 of24 Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 1 of 11 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JUNE 4, 2014 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ 1. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the official record of that hearing. 3. CONSIDERATION of Approval of Grant Applications – Capt. Erik Utter and/or Sgt. Nathan Garibay, Sheriff’s Office Document No. 2014-328, the Annual Justice Assistance Grant (JAG) Document No. 2014-327, Pre-disaster Mitigation Plan Update Grant (FEMA/Oregon Emergency Management) Suggested Action: Move Board approval of County Administrator signature of the grant applications. 4. CONSIDERATION of Board Signature of Document No. 2014-297, a Notice of Intent to Award Contract Letter for Janitorial Services for the Sheriff’s Office – Darryl Nakahira and/or Lt. Deron McMaster, Sheriff’s Office Suggested Action: Move signature of Document No. 2014-297. Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 2 of 11 5. CONSIDERATION of Board Signature of Documents Related to the La Pine Land Conveyance Act of 2012, through the Bureau of Land Management – James Lewis, Property & Facilities Document No. 2014-294, Granting an Easement to Midstate Electric Cooperative, La Pine Document No. 2014-251, a Bargain and Sale Deed to the City of La Pine Document No. 2014-259, a Bargain and Sale Deed to the La Pine Park and Recreation District Document No. 2014-264, a Bargain and Sale Deed to Midstate Electric Cooperative, La Pine Suggested Action: Move signature of documents. 6. A PUBLIC HEARING and Consideration of Board Signature of Resolution No. 2014-052, Adopting the Fiscal Year 2014-15 Fee Schedule for Deschutes County for 2014-15 – Christina Partain, Finance Suggested Actions: Open the public hearing and take testimony; move Board signature of Resolution No. 2014-052. 7. CONSIDERATION of Second Reading by Title Only, and Adoption, of Ordinance No. 2014-003, Amending Code regarding Presumptive Fines for Violations – Laurie Craghead, County Counsel Suggested Actions: Move second reading by title only, and adoption, of Ordinance No. 2014-003. 8. CONSIDERATION of Second Reading by Title Only, and Adoption, of Ordinance No. 2014-004, Amending Code regarding Fines to be Consistent with Oregon Revised Statute – Laurie Craghead, County Counsel Suggested Actions: Move second reading by title only, and adoption, of Ordinance No. 2014-004. Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 3 of 11 9. A PUBLIC HEARING and Consideration of First Reading by Title Only of Ordinance No. 2014-017, Amending Title 17, Changes to the County’s Traffic Study Requirements – Peter Russell, Community Development Suggested Actions: Open public hearing, take testimony, move first reading of Ordinance No. 2014-017, by title only. 10. A PUBLIC HEARING and Consideration of First Reading by Title Only of Ordinance No. 2014-001, Amending Title 18, Changes to the County’s Traffic Study Requirements – Peter Russell, Community Development Suggested Actions: Open public hearing, take testimony, move first reading of Ordinance No. 2014-001, by title only. 11. CONSIDERATION of Board Signature of Documents No. 2014-286 and 2014-287, Farm and Forest Management Easements that were Required for a Medical Hardship Dwelling in the Exclusive Farm Use Zone – Paul Blikstad, Community Development Suggested Action: Move signature of Documents No. 2014-286 and 2014-287. 12. A PUBLIC HEARING on the Appeal of the Hearings Officer’s Decision on Application No. A-13-8, regarding Whether the Conceptual Master Plan Approval for Thornburgh Destination Resort Has Been Initiated – Kevin Harrison, Community Development Suggested Actions: Open public hearing, take testimony, deliberate as appropriate. CONSENT AGENDA 13. Board Signature of Document No. 2014-121, an Intergovernmental Agreement for Sheriff’s Office Law Enforcement Services in the City of Sisters 14. Board Signature of Resolution No. 2014-079, Approving the Assignment and Transfer of the Cable Television Franchise Issued to Bend Cable Communications/Bendbraodband to Telephone and Data Systems, Inc. (dba TDS Baja) Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 4 of 11 15. Board Signature of Document No. 2014-295, a Quitclaim Deed for 600 Square Feet to the City of Bend 16. Board Signature of Order No. 2014-016, Canceling Uncollectible Personal Property Taxes 17. Approval of Minutes:  Business Meeting: May 19, 2014  Work Session: May 19, 2014 CONVENE AS THE GOVERNING BODY OF THE SUNRIVER SERVICE DISTRICT 18. CONSIDERATION of Board Signature of Resolution No. 2014-050, Transferring Appropriations within the Operating Funds – Wayne Lowry, Finance; Mike Gocke, Sunriver Service District Suggested Action: Move Board signature of Resolution No. 2014-058. 19. CONSIDERATION of Board Signature of Document No. 2014-326, a Special Districts Insurance Services Form of Joinder to Trust Agreement – Dave Doyle, County Counsel Suggested Action: Move Board signature of Document No. 2014-326. 20. A PUBLIC HEARING and Consideration of Board Signature of Resolution No. 2014-058, Adopting the Fiscal Year 2014-15 Fee Schedule for the Sunriver Service District – Christina Partain, Finance Suggested Actions: Open the public hearing and take testimony; move Board signature of Resolution No. 2014-058. CONVENE AS THE GOVERNING BODY OF THE BLACK BUTTE RANCH COUNTY SERVICE DISTRICT 21. A PUBLIC HEARING and Consideration of Board Signature of Resolution No. 2014-053, Adopting the Fiscal Year 2014-15 Fee Schedule for the Black Butte Ranch County Service District – Christina Partain, Finance Suggested Actions: Open the public hearing and take testimony; move Board signature of Resolution No. 2014-053. Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 5 of 11 CONVENE AS THE GOVERNING BODY OF THE COUNTYWIDE LAW ENFORCEMENT DISTRICT #1 22. A PUBLIC HEARING and Consideration of Board Signature of Resolution No. 2014-055, Adopting the Fiscal Year 2014-15 Fee Schedule for the Countywide Law Enforcement District #1– Christina Partain, Finance Suggested Actions: Open the public hearing and take testimony; move Board signature of Resolution No. 2014-055. CONVENE AS THE GOVERNING BODY OF THE RURAL LAW ENFORCEMENT DISTRICT #2 23. A PUBLIC HEARING and Consideration of Board Signature of Resolution No. 2014-056, Adopting the Fiscal Year 2014-15 Fee Schedule for Rural Law Enforcement District #2 for 2014-15 – Christina Partain, Finance Suggested Actions: Open the public hearing and take testimony; move Board signature of Resolution No. 2014-056. CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 24. A PUBLIC HEARING and Consideration of Board Signature of Resolution No. 2014-054, Adopting the Fiscal Year 2014-15 Fee Schedule for the 9-1-1 County Service District for 2014-15 – Christina Partain, Finance Suggested Actions: Open the public hearing and take testimony; move Board signature of Resolution No. 2014-054. 25. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 9-1-1 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H COUNTY SERVICE DISTRICT 26. A PUBLIC HEARING and Consideration of Board Signature of Resolution No. 2014-057, Adopting the Fiscal Year 2014-15 Fee Schedule for the Extension/4-H County Service District for 2014-15 – Christina Partain, Finance Suggested Actions: Open the public hearing and take testimony; move Board signature of Resolution No. 2014-057. Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 6 of 11 27. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 28. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County 29. ADDITIONS TO THE AGENDA _________ ______________________________________ 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 accommodations to make participation possible, please call (541) 388-6572, or send an e-mail to bonnie.baker@deschutes.org. _________ ______________________________________ PLEASE NOTE: At any time during this 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 items. ______________________________________ FUTURE MEETINGS: (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.) Monday, June 2 1:30 p.m. Administrative Work Session – could include executive session(s) Tuesday, June 3 3:30 p.m. Local Public Safety Coordinating Council Meeting 5:00 p.m. Bend Chamber of Commerce Event Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 7 of 11 Wednesday, June 4 10:00 a.m. Board of Commissioners’ Business Meeting 2:00 p.m. Joint Work Session with the La Pine City Council, La Pine City Hall Thursday, June 5 8:30 a.m. Performance Management & Department Update – Justice Court Monday, June 9 – Tuesday, June 10 Association of Oregon Counties’ Spring Conference – Hood River Thursday, June 12 7:00 a.m. State of the Community – City/County – Chamber of Commerce – Riverhouse Monday, June 16 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) 4:00 p.m. Mobilization Ceremony, at Bend Elks Ball Field Wednesday, June 18 11:00 a.m. Oregon Youth Challenge Graduation – Fair/Expo, Redmond Monday, June 23 10:00 a.m. Board of Commissioners’ Business Meeting – includes public hearings and adoption of budgets for fiscal year 2014-15 1:30 p.m. Administrative Work Session – could include executive session(s) Tuesday, June 24 11:00 a.m. Annual Luncheon Meeting of Board of Commissioners with the Black Butte Ranch County Service District Board – Black Butte Ranch 1:00 p.m. Employee Benefits Advisory Committee Meeting Wednesday, June 25 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 8 of 11 Thursday, June 26 8:00 a.m. 9-1-1 Director Candidate Interviews – at 9-1-1 5:30 p.m. Joint Meeting of the Board of Commissioners and Planning Commission Friday, June 27 8:00 a.m. 9-1-1 Director Candidate Interviews – at 9-1-1 Monday, June 30 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Tuesday, July 1 8:00 a.m. Sisters Chamber of Commerce Event – State of the City – Sisters 3:30 p.m. Local Public Safety Coordinating Council Meeting Wednesday, July 2 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) 5:30 p.m. Public Hearing on Central Oregon Irrigation District Text Amend (Canal Piping) Thursday, July 3 8:00 a.m. Joint Meeting of Board of Commissioners with Sisters City Council, City Hall 11:00 a.m. Performance Management & Department Update – Legal Counsel Monday, July 4 Most County offices will be closed to observe Independence Day Monday, July 7 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 9 of 11 Wednesday, July 9 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, July 21 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Tuesday, July 22 1:00 p.m. Employee Benefits Advisory Committee Meeting Wednesday, July 23 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, July 28 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, August 4 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Tuesday, August 5 3:30 p.m. Local Public Safety Coordinating Council Meeting Wednesday, August 6 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 10 of 11 Thursday, August 7 9:00 a.m. Performance Management & Department Update – 9-1-1 County Service District Wednesday, August 13 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, August 18 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Wednesday, August 20 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Monday, August 25 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Wednesday, August 27 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Thursday, August 28 9:00 a.m. Performance Management & Department Update – Sheriff’s Office, Part I Tuesday, September 2 3:30 p.m. Local Public Safety Coordinating Council Meeting 5:00 p.m. County College Presentation Board of Commissioners’ Business Meeting Agenda Wednesday, June 4, 2014 Page 11 of 11 Wednesday, September 3 10:00 a.m. Board of Commissioners’ Business Meeting 1:30 p.m. Administrative Work Session – could include executive session(s) Thursday, September 4 9:00 a.m. Performance Management & Department Update – Sheriff’s Office, Part II _________ ______________________________________ 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 accommodations to make participation possible, please call (541) 388-6572, or send an e-mail to bonnie.baker@deschutes.org. _________ ______________________________________ Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org ADDITION TO BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JUNE 4, 2014 _____________________________ Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend __________________________ 1. CONSIDERATION of Board Signature of Order No. 2014-014, Repealing Order No. 2012-017 and Authorizing Designated persons to Provide Custody and Secure Transport Services for Allegedly Mentally Ill Persons – Scott Johnson and/or Jane Smilie, Health Services ADDITIONAL CONSENT AGENDA 2. Board Signature of a Letter Appointing Rick Root to the Deschutes County Bicycle and Pedestrian Advisory Committee, through June 30, 2015 3. Board Signature of Document No. 2014-330, an Addendum to a Real Estate Sale Agreement with Biogreen Sustainable Energy Co. 4. Board Signature of Document No. 2014-324, the Annual Boating Safety and Law Enforcement Agreement between the Sheriff’s Office and the State of Oregon Marine Board BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest --f At>r", '\)vr4 h c., fW=C.j Name 0 <I( -J: <!. ?e.+cr5</\ Address gr<~ S W f:" ("-rh (j v4!. -:t:I:-/ b 00 90 f-t-la/\5d P9-c,,;2., 6 Lj Date b A 4 -I Lf Phone #s (03 ­~Dd--~Dr'-j E-mail address Jotv;~. pet(-(~(D 1~J\ lOll" (UJ"­ Q In Favor D NeutrallUndecided D Opposed Submitting written documents as part of testimony? DYes D No BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item ofInterest __--=L;.;:.I../Fy...::...:;l---....:Ct=-:!.,I.:::l.J~J>¥4¥r!~~.!!...$Ll___ Date 10/'-//t1 Name l)rW L O£\;~ E:t ----~~~-~----------------- Phone #s t} 41-Le ' ;1, tJ -r;; I{53 ------~~~~~~------------------- E-mail address ___-+(..:..:2d..::..;«t::....!:LtJ=..;,<:i:..lj¥~~.::::.....;0::::.:<t:i~ort:;.:::.J!......:"""::..::.""-=\;;?...::...:/.. . ...:;<..O::...:..:frJ.~__________:....::.. In Favor D NeutrallUndecided [Z] Opposed Submitting written documents as part of testimony? 0 Yes D No Bonnie Baker From: Kevin Harrison Sent: Tuesday, May 20,20148:52 AM To: Bonnie Baker Cc: Laurie Craghead; Nick Lelack; Paul Dewey (pdewey@bendcable.com); david. petersen@tonkon.com Subject: Agenda request and related materials for A-14-1 (Loyal Land) Attachments: A141 Agenda_Request_Form.docx; M.BCC.A141.docx; CONDITIONS OF APPROVAL FOR CU.docx; A141.Notice of appeal. pdf; A138. Applicant's written submittals.pdf; A138. Opponents' written submittals. pdf; A138 DR118.pdf; LUBA No. 2012-042 (DR-11-8).pdf Bonnie: Please find attached an agenda request for a public hearing on June 4 at the Board Business Meeting along with the following attachments: • Cover memo and conditions of approval for CU-05-20 • Notice of appeal (A-14-1;loyal Land) • Hearings Officers decison (A-13-8; DR-1l-8) • Applicant's written testimony for A-13-8 • Opponent's written testimony for A-13-8 • LUBA No. 2012-042 Please also reserve time for a Board work session on June 2. It will probably require at least one hour. Let me know if you have any questions. Thanks. Kevin Principal Planner 117 NW Lafayette Avenue Bend, OR 97701 (541) 385-1401 E-mail: kevinh@co.deschutes.or.us 1 MEMORANDUM To: Deschutes County Board of Commissioners From: Kevin Harrison, Principal Planner Date: May 20, 2014 Re: Appeal of Hearings Officer’s decision; File no. A-14-1 The following is an outline and discussion of the key points associated with the Board’s review of the Hearings Officer’s decision on A-13-8. I. Nature of the Application A. The application under review is a declaratory ruling to determine whether the conceptual master plan (CMP) for Thornburgh Destination Resort has been “initiated”. If it has, then there is no expiration date and the permit can be used in subsequent permits to develop the resort. If the CMP has not been initiated, then the approval has expired and the resort has no land use entitlements. II. Background/History A. The CMP (County file no. CU-05-20) was approved by the Board and, after a series of appeals became final on December 9, 2009. LUBA determined that the expiration date of the approval was November 18, 2011. B. The applicant, Loyal Land, LLC, filed a declaratory ruling (DR-11-8) on November 1, 2011, seeking a determination from the County as to whether the CMP has been initiated. On April 12, 2012, the Hearings Officer issued a decision that the CMP had been initiated. That decision was appealed to the Land Use Board of Appeals (LUBA). C. LUBA remanded the County approval (LUBA No. 2012-042) on January 8, 2013, finding that the Hearings Officer inappropriately considered only “relevant” conditions of approval instead of all conditions of approval of the CMP. D. Loyal Land submitted a request to the County on December 23, 2013 (A-13-8) to initiate a hearing on the remanded decision. A public hearing was held on February 4, 2014, and a decision was issued on March 18, 2014, finding that the CMP had not been initiated. Page 2 E. Loyal Land submitted an appeal of the Hearings Officer’s decision on March 31, 2014 (A-14-1); by Order No. 2014-010, the Board agreed to hear the appeal and a hearing has been scheduled for June 4, 2014. F. By Order No. 2014-010, the Board shall hear the appeal de novo only on the issue of whether the application complied with DCC 22.36.020(A)(3). III. Parties to the Proceedings A. Applicant/Appellant: Loyal Land, LLC, as represented by David Petersen of Tonkon Torp LLP. B. Opponent: Nunzie Gould, as represented by Paul Dewey. IV. The Record A. The record consists of the following: 1. The record for LUBA No. 2012-042 (DR-11-8). 2. The record for A-13-8. 3. All materials submitted for A-14-1. V. Scope and Focus of Hearing A. The hearing is de novo only on the issue on the issue of whether the application complied with DCC 22.36.020(A)(3). (Order No. 2014-010) B. DCC 22.36.020(A)(3) reads as follows: “For the purpose of DCC 22.36.020, development action under a land use approval described in DCC 22.36.010 has been ‘initiated’ if it is determined that: Where construction is not required by the approval, the conditions of a permit or approval have been substantially exercised and any failure to fully comply with the conditions is not the fault of the applicant.” C. In LUBA No. 2012-042, LUBA gave the following relevant instructions: 1. County must consider whether all of the 38 conditions of approval have been ‘substantially exercised’. 2. County can interpret this to apply to all 38 conditions individually or to the 38 conditions viewed as a whole. 3. For those conditions that have not been substantially exercised, failure to do so is not the fault of the applicant. 4. With respect to conditions of approval that provide ‘contingent or continuing obligations’, the County may find that any failure on the applicant’s part to comply with such conditions is not the applicant’s fault because: a. The contingency that would trigger obligations under the condition does not and may never exist, or b. The applicant’s failure to obtain any additional prerequisite land use approvals is not the applicant’s fault. D. After consideration of LUBA No. 2012-042, the Hearings Officer found that the applicant did not initiate the resort before the CMP approval became void and made the following relevant findings: 1. Conditions of approval 3, 8, 9, 10, 11, 13, 14A, 14B, 15, 19, 22, 24, 30, 36 and 37 were found to be fully complied with in DR-11-8 and were not challenged in the appeal to LUBA and, thus, are not subject to further review. (Page 16 of Hearings Officer’s Decision on Remand) Page 3 2. The applicant fully complied with conditions 1, 14E, 23 and 32. 3. The applicant substantially exercised condition 38. 4. Most of the CMP conditions of approval under consideration impose contingent obligations on the applicant that did not occur before the destination resort approval became void, and the applicant’s failure to fully comply with those contingent obligations was the applicant’s fault. a. The Hearings Officer describes the reasoning behind this determination on pages 27-31 of her Decision on Remand. b. The term “fault” is defined in the decision as “reasons for which the applicant was not responsible, including but not limited to, delay by a state or federal agency in issuing a required permit.” (Page 16 of Hearings Officer’s Decision on Remand) In summary, the applicant argues its failure to initiate the Final Master Plan (FMP) remand was due to four circumstances outside its control. i. BLM Approval of Wildlife Mitigation Plan. The Hearings Officer found that there was not substantial evidence in the record before her to determine that the applicant’s failure to initiate the FMP remand was due to a delay in the BLM’s approval of the wildlife mitigation plan. The Board may consider new evidence on this issue in their review. ii. TRC’s Bankruptcy and Other Economic Considerations. The Hearings Office found there was no evidence in the record of a direct connection between the general economic downturn and Thornburgh’s financial difficulties, which clearly predated the recession. The Hearings Officer also found that TRC and the applicant were partly and perhaps primarily responsible for TRC’s inability to develop the resort within the initiation period. iii. Opponent’s Appeals. The Hearings Officer agreed with the opponent that the opponent cannot reasonably be blamed for the applicant’s delay in initiating the FMP remand. iv. Futility of Initiating FMP Remand. The Hearings Officer found that it would have been possible for TRC to obtain approval of the FMP and the tentative and final plats for the first two phases of the resort before November 11, 2011 (i.e., before the CMP became void). ` c. While securing approval of the FMP and tentative plat for the first two phases of the resort would not have constituted full compliance with all CMP conditions, it would have been full compliance with at least 9 of the remaining CMP conditions, and could have provided the foundation for a finding that the CMP conditions of approval, when viewed as a whole, were substantially exercised. 5. The Hearings Officer lacked authority to consider whether the applicant substantially exercised most of the conditions with which the applicant failed to fully comply because the noncompliance was the applicant’s fault. 6. The term “substantially exercised”, as used in the Hearings Officer’s decision in DR-11-8, was not challenged in the appeal to LUBA and, thus, stands as described in that decision- i.e., performing or carrying out a condition of approval to a significant degree but not completely. (Page 24 of Hearings Officer’s Decision on Remand) Page 4 7. When viewed as a whole, those conditions that were not fully complied with are more significant to the development of the resort than those conditions that were complied with. (Pages 45-47 of Hearings Officer’s Decision on Remand) VI. Schedule/Attachments A. A public hearing is scheduled for June 4, 2014. A work session is scheduled for June 2, 2014. The applicant has granted an extension of the statutory review timeline to August 3, 2014. B. Attached are copies of: (1) the Notice of Appeal; (2) Hearings Office Decision on Remand (A-13-8/DR-11-8); (3) Applicant’s and Opponent’s written arguments and testimony on A-13-8; (4) LUBA No. 2012-042; and (5) the conditions of approval for the CMP, color-coded pursuant to the Hearings Officer’s findings as to compliance. 1 CONDITIONS OF APPROVAL FOR CU-05-20, CONCEPTUAL MASTER PLAN FOR THORNBURGH RESORT 1. Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application. 2. All development in the resort shall require tentative plat approval through Title 17 of the County Code, the County Subdivision/Partition Ordinance, and/or Site Plan Review through Title 18 of the County Code, the Subdivision Ordinance (sic). 3. Applicant shall provide a signed grant of right-of-way from the U.S. Department of Interior – Bureau of Land Management for an access easement connection to U.S. Highway 126, prior to submission of a Final Master Plan application. 4. Subject to U.S. Department of the Interior – Bureau of Land Management (BLM) approval, any secondary emergency ingress/egress across the BLM-owned land or roadways shall be improved to a minimum width of 20 feet with an all-weather surface capable of supporting a 60,000-lb. fire vehicle. Emergency secondary resort access roads shall be improved before any Final Plat approval or issuance of a building permit, whichever comes first. 5. The developer shall design and construct the road system in accordance with Title 17 of the Deschutes County Code (DCC). Road improvement plans shall be approved by the Road Department prior to construction. 6. All easements of record or right-of-ways (sic) shall be shown on any final plat. 7. All new proposed road names must be reviewed and approved by the Property Address Coordinator prior to final plat approval. 8. Plan review and approval of water supply plans for phase 1 will be required by Oregon Department of Human Services-Drinking Water Program (DHS-DWP) prior to Final Master Plan approval. 9. Applicant shall designate the location of all utility lines and easements that burden the property on the FMP. 10. Applicant shall comply with all applicable requirements of state water law as administered by OWRD for obtaining a state water right permit and shall provide documentation of approval of its application for a water right permit prior to approval of the final master plan. Applicant shall provide, at the time of tentative plat/site plan review for each individual phase of the resort development, updated documentation of 2 the state water right permit and an accounting of the full amount of mitigation, as required under the water right, for that individual phase. 11. At the time of submission for Final Master Plan (FMP) approval, Applicant shall include a written plan for entering into cooperative agreements with owners of existing wells within a two-mile radius of Applicant’s wells. The plan shall include a description of how Applicant will provide notice to affected well owners and of the terms and conditions of an option for well owners to enter into a written agreement with Applicant under which Applicant will provide indemnification to well owners in the event of actual well interference as a result of Applicants water use. The plan shall remain in effect for a period of five years following full water development by Applicant. Specific terms and conditions of the plan shall be developed in cooperation with County staff and the Oregon Water Resources Department. 12. Commercial, cultural, entertainment or accessory uses provided as part of the destination resort shall be contained within the development and shall not be oriented to public roadways. Commercial, cultural and entertainment uses allowed within the destination resort shall be incidental to the resort itself. As such, these ancillary uses shall be permitted only at a scale suited to serve visitors to the resort. Compliance with this requirement shall also be included as condition of FMP approval. 13. Applicant shall specify all recreational facilities within the proposed resort as part of final master plan submittal. 14. Applicant and its successors shall do the following to ensure that all open space used to assure the 50% open space requirement of Section 18.113.060(D)(1) is maintained in perpetuity: A. Applicant shall submit for approval, as part of the Final Master Plan, a delineation of the Open Space that is substantially similar to the area shown in the Open Space Plan submitted as Ex. 9, B-14 to the “Memorandum of Applicant, in response to public comments dated September 28, 2005, (sic) Open Space shall be used and maintained as “open space areas” as that term is used in DCC 18.113.030(E). B. The CC&Rs, as modified and submitted to the County on December 20, 2005, shall be further revised such that, Section 3.4 retains the first two sentences, but the balance of 3.4 is replaced with the following: At all times, the Open Space shall be used and maintained as “open space areas.” The foregoing sentence is a covenant and equitable servitude, which runs with the land in perpetuity and is for the benefit of all of the Property, each Owner, the Declarant, the Association, and the Golf Club. All of the foregoing entities shall have the right to enforce covenant and equitable servitude. This Section 3.4 may not be amended except if approved by an affirmative vote of all Owners, the Declarant, the Golf Club and the Association. C. All deeds conveying all or any part of the subject property shall include the following restriction: 3 This property is part of the Thornburgh Resort and is subject to the provisions of the Final Master Plan for Thornburgh Resort and the Declaration of Covenants, Conditions and Restrictions of Thornburgh Resort. The Final Master Plan and the Declaration contain a delineation of open space areas that shall be maintained as open space areas in perpetuity. D. All open space areas shall be clearly delineated and labeled on the Final Plat. E. Any substantial change to the open space approved under this decision will require a new land use permit. 15. Applicant shall obtain an approved Water Pollution Control Facility (WPCF) permit (as described in DCC 18.113.070(L)) prior to application for Final Master Plan. 16. All temporary structures shall be limited to a maximum of 18 months on the resort site. 17. 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 ingress/egress roadway improvements. 18. No development shall be allowed on slopes of 25% or more on the site. 19. Applicant shall implement a “Wildfire/Natural Hazard Protection Plan” for the resort, as identified in Ex. 15, B-29 of the burden of proof statement. Prior to approval of the Final Master Plan and each subdivision and site plan, Applicant shall coordinate its evacuation plans through that development phase with the Deschutes County Sheriff’s Office and the Redmond Fire Department. At the same time, Applicant shall also coordinate its plans for the movement of evacuees over major transportation routes with the Oregon State Police and the Oregon Department of Transportation. 20. The cumulative density of development at the end of any phase shall not exceed a maximum density of 0.72 dwelling units per acre (including residential dwelling units and excluding visitor-oriented overnight lodging). 21. Each phase of the development shall be constructed such that the number of overnight lodging units meets the 150 overnight lodging unit and 2:1 ratio of individually owned units to overnight lodging units standard set out in DCC 18.113.060(A)(1) and 18.113.060(D)(2). (Note: DCC 18.113.060(D)(2) subsequently amended to require 2.5:1 ratio) Individually owned units shall be considered visitor oriented lodging if they are available for overnight rental use by the general public for at least 45 weeks per calendar year through one or more central reservation and check-in services. As required by ORS 197.445(4)(b)(B), at least 50 units of overnight lodging must be constructed in the first phase of development, prior to closure of sale of individual lots or units (Source: Board Decision on Remand; Document No. 2008-151). 4 In addition to complying with the specific requirements of DCC 18.113.050(U) (sic), 1- 5, Applicant, its successors and assigns, shall at all times maintain (1) a registry of the individually owned units subject to deed restrictions under DCC 18.113.070(U)(2) (sic), requiring they are available for overnight lodging purposes: (2) an office in a location reasonably convenient to resort visitors as a reservation and check-in facility at the resort; and (3) a separate telephone reservation line and a website in the name of “Thornburgh Resort”, to be used by members of the public to make reservations. As an alternative to or in addition to (3), Applicant may enter into an agreement with a firm (booking agent) that specializes in the rental or time-sharing of resort property, providing that Applicant will share the information in the registry required by (1) and cooperate with the booking agent to solicit reservations for available overnight lodging at the resort. If Applicant contracts with a booking agent, Applicant and the booking agent shall cooperate to ensure compliance with the requirements of DCC 18.113.070(U)(5), (sic) by filing a report on January 1 of each year with the Deschutes County Planning Division. (Staff note: All references should be to DCC 18.113.070(L), not .050 or (U)) 22. Applicant shall submit final covenants, conditions and restrictions to the county prior to Final Master Plan approval. The final covenants, conditions and restrictions adopted by the developer and amendments thereto shall conform in all material respects to this decision and the requirements of the DCC. 23. No permission to use or improve Barr Road as access to the Resort is given or implied by this decision. 24. Applicant shall complete annexation of the property in any area of development into Deschutes County Rural Fire Protection District No. 1 before commencing combustible construction in the area. 25. Applicant shall submit a detailed erosion control plan with the first Tentative Plat or Site Plan, whichever comes first. 26. Lot size, width (frontage), coverage, off-street parking and setbacks, including solar setbacks, are permitted as described in Applicant’s Exhibit 8, B-24a in the Burden of Proof document, subject to review during the subdivision review process to confirm that there will be safe vehicle access to each lot. Compliance with the dimensional standards shall be confirmed during subdivision approval for each development phase. All multi-family units, commercial structures, and other resort facilities are exempted from meeting the solar setback standards. 27. Road width shall be consistent with the requirements set forth in the County’s subdivision ordinance. DCC Chapter 17.36. 5 28. Applicant shall abide at all times with the MOU with BLM, dated September 28, 2005, regarding mitigation of impacts on surrounding federal lands, to include wildlife mitigation and long-range trail planning and construction of a public trail system. The mitigation plan adopted by Applicant in consultation with Tetra Tech, ODFW and the BLM shall be adopted and implemented throughout the life of the resort. 29. Applicant shall abide at all times with the MOU with ODOT, regarding required improvements and contributions to improvements on ODOT administered roadways (Agreement Number 22759, dated 10/10/05). 30. Applicant shall submit a detailed traffic circulation plan, delineating resort access roads, resort internal circulation roads and resort secondary emergency ingress/egress roads, prior to Final Master Plan approval. 31. All exterior lighting must comply with the Deschutes County Covered Outdoor Lighting Ordinance per Section 15.10 of Title 15 of the DCC. 32. No permission to install a helicopter landing zone (helipad) at the Resort is given or implied by this decision. 33. The Resort shall, in the first phase, provide for the following: A. At least 150 separate rentable units for visitor-oriented lodging. B. Visitor-oriented eating establishments for at least 100 persons and meeting rooms which provide eating (sic) for at least 100 persons. C. The aggregate cost of developing the overnight lodging facilities and the eating establishments and meeting rooms required in DCC 18.113.060(A)(1) and (2) shall be at least $2,000,000 (in 1984 dollars). D. At least $2,000,000 (in 1984 dollars) shall be spent on developed recreational facilities. E. The facilities and accommodations required by DCC 18.113.060 must be physically provided or financially assured pursuant to DCC 18.113.110 prior to closure of sales, rental or lease of any residential dwellings or lots. 34. Where construction disturbs native vegetation in open space areas that are to be retained in a 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. 35. The contract with the owners of units that will be used for overnight lodging by the general public shall contain language to the following effect: “[Unit Owner] shall make the unit available to [Thornburgh Resort/booking agent] for overnight rental use by the general public at least 45 weeks per calendar year through a central reservation and check-in service.” 6 36. Applicant shall coordinate with the Sheriff’s Office and its designated representative to address all public safety needs associated with the resort and the development process. 37. Applicant shall modify the Overnight and Density Calculations chart presented to the Board at the appeal hearing on December 20, 2005 by replacing it with the Overnight and Density Calculations chart included on page 25 in Applicant’s final legal argument, dated January 3, 2006, as shown below. The 75 units of overnight lodging shown in the December 20, 2005 Overnight and Density Calculations table to be developed in Phase C will actually be developed in Phase B, for a total of 150 units in Phase B. The Overnight and Density Calculations table will be corrected to show the 50 hotel units will be developed in Phase D, where the Phasing Plan, attached to the Memorandum of Applicant in Response to Public Comments, Ex. 13, Revised B-1.8, already shows the hotel will be developed. Additionally, the legend in the Phasing Plan will be corrected to show hotel and residential overnight lodging uses in Phase D. Applicant shall present the corrected Phasing Plan and Overnight and Density Calculations chart, consistent with this condition, during the Final Master Plan approval process. (Note: Referenced table omitted. This condition inadvertently numbered 36 in Board Decision on Remand, Document No. 2008-151) 38. Applicant shall demonstrate compliance with DCC 18.113.070(D) by submitting a wildlife mitigation plan to the County as part of its application for Final master plan approval. The County shall consider the wildlife mitigation plan at a public hearing with the same participatory rights as those allowed in the CMP approval hearing. (Note; This condition was numbered 37 in Board Decision on Remand, Document No. 2008-151) Conditions in red are those found to be fully complied with in DR-11-8 and not challenged at LUBA. These conditions are no longer subject to review. Conditions in blue are those found to be either fully complied with or substantially exercised in A-13-8. These conditions are subject to review under A-14-1. Loyal Land Remand A-13-8, DR-11-8 Page 1 of 47 DECISION OF DESCHUTES COUNTY HEARINGS OFFICER FILE NUMBERS: A-13-8, DR-11-8 APPLICANT: Loyal Land, LLC 27333 N. 96 th Way Scottsdale, Arizona 85262 PROPERTY OWNERS: Loyal Land, LLC (Tax Lots 5000, 5001, 5002, 7700, 7701, 7800 and 7900) Agnes DeLashmutt 4048 N.W. Xavier Redmond, Oregon 97756 (Tax Lot 8000) APPLICANT’S ATTORNEY: David Petersen Tonkon Torp LLP 1600 Pioneer Tower 888 S.W. Fifth Avenue Portland, Oregon 97204 OPPONENT’S ATTORNEY: Paul D. Dewey 1539 N.W. Vicksburg Avenue Bend, Oregon 97701 REQUEST: The applicant requested and the county issued a declaratory ruling that the use approved through the Thornburgh Destination Resort CMP had been initiated (DR-11-8). Opponent appealed the county’s decision and LUBA remanded the decision for further proceedings. The applicant requested that the remand proceedings be initiated (A-13-8). STAFF REVIEWER: Kevin Harrison, Principal Planner ORIGINAL HEARING: February 7, 2012 ORIGINAL DECISION: April 12, 2012 LUBA REMAND: January 8, 2013 REMAND INITIATION: January 3, 2014 REMAND HEARING: February 4, 2014 REMAND RECORD CLOSED: February 21, 2014 I. APPLICABLE STANDARDS AND CRITERIA: Loyal Land Remand A-13-8, DR-11-8 Page 2 of 47 A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.16, Exclusive Farm Use Zones * Section 18.16.035, Destination Resorts 2. Chapter 18.113, Destination Resorts Zone (DR) * Section 18.113.040, Application Submission * Section 18.113.050, Requirements for Conditional Use Permit and Conceptual Master Plan Applications * Section 18.113.060, Standards for Destination Resorts * Section 18.113.075, Imposition of Conditions * Section 18.113.080, Procedure for Modification of a Conceptual Master Plan * Section 18.113.090, Requirements of Final Master Plan B. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.08, General Provisions * Section 22.08.010, Application Requirements 2. Chapter 22.20, Review of Land Use Action Applications * Section 22.20.040, Final Action in Land Use Actions 3. Chapter 22.24, Land Use Action Hearings * Section 22.24.080, Standing * Section 22.24.140, Continuances or Record Extensions 4. Chapter 22.28, Land Use Action Decisions * Section 22.28.010, Decision 5. Chapter 22.34, Proceedings on Remand * Section 22.34.010, Purpose * Section 22.34.020, Hearings Body * Section 22.34.030, Notice and Hearings Requirements * Section 22.34.040, Scope of Proceeding 6. Chapter 22.36, Limitation on Approvals * Section 22.36.010, Expiration of Approval * Section 22.36.020, Initiation of Use * Section 22.36.050, Transfer of Permit 7. Chapter 22.40, Declaratory Ruling Loyal Land Remand A-13-8, DR-11-8 Page 3 of 47 * Section 22.40.010, Availability of Declaratory Ruling * Section 22.40.020, Persons Who May Apply * Section 22.40.030, Procedures * Section 22.40.040, Effect of Declaratory Ruling * Section 22.40.050, Interpretation II. FINDINGS OF FACT: A. Location: The subject property, the Thornburgh Destination Resort, is comprised of eight tax lots -- tax Lots 5000, 5001, 5002, 7700, 7701, 7800, 7801, 7900 and 8000 on Deschutes County Assessor’s Map 15-12. B. Zoning and Plan Designation: The subject property is zoned Exclusive Farm Use– Sisters/Cloverdale Subzone (EFU-SC) and Destination Resort (DR) Overlay Zone. The property is designated Agriculture on the Deschutes County Comprehensive Plan map. C. Site Description: The subject property is approximately 1,970 acres in size and has vegetation consisting of juniper woodland. The property covers the south and west portions of the geologic feature know as Cline Buttes. The property currently is developed with three dwellings and a barn, access to which is from Cline Falls Highway. The property is engaged in farm use consisting of low-intensity livestock grazing. D. Surrounding Zoning and Land Uses: The subject property is surrounded by public land primarily owned and managed by the U.S. Bureau of Land Management (BLM). A portion of the public land is owned and managed by the Oregon Department of State Lands (DSL). The Eagle Crest Destination Resort is located near the northern portion of the subject property. E. Land Use History: The Thornburgh Destination Resort has a long history. The conceptual master plan (CMP) application submitted by Thornburgh Resort Company, LLC (TRC) was denied by former Deschutes County Hearings Officer Anne Corcoran Briggs by a decision dated November 9, 2005 (CU-05-20). That decision was appealed by Nunzie Gould (hereafter “opponent”) and Steve Munson (Munson) to the Deschutes County Board of Commissioners (“board”) (A-05-16). By a decision dated May 10, 2006, the board approved the CMP. Opponent and Munson appealed the board’s decision to the Land Use Board of Appeals (LUBA) (Nos. 2006-100 and 101). LUBA remanded the board’s decision on May 14, 2007. Gould v. Deschutes County , 54 Or LUBA 2005 (2007). Opponent and Munson appealed LUBA’s decision to the Court of Appeals seeking a broader remand scope. (A135856). On November 7, 2007, the Court of Appeals reversed and remanded LUBA’s decision. Gould v. Deschutes County , 216 Or App 150, 171 P3d 1017 (2007). The result of this decision was that the board’s decision in CU-05-20 approving the CMP was remanded to the county for further proceedings. On April 15, 2008 the board issued its decision on remand again approving the CMP (Document No. 2008-151). Opponent and Munson appealed the board’s decision to LUBA on May 6, 2008 (No. 2008-068). On September 11, 2008, LUBA affirmed the board’s decision. Gould v. Deschutes County , 57 Or LUBA 403 (2008). Opponent and Munson appealed LUBA’s decision to the Court of Appeals (A140139). On April 22, 2009 the Court of Appeals affirmed LUBA’s decision. Gould v. Deschutes County , 227 Or App 601, 206 P3d 1106 (2009). Opponent and Munson appealed the Court of Loyal Land Remand A-13-8, DR-11-8 Page 4 of 47 Appeals’ decision to the Oregon Supreme Court (S057541). On October 9, 2009, the Supreme Court denied review. Gould v. Deschutes County , 347 Or 258, 218 P3d 540 (2009). On December 9, 2009 the Court of Appeals issued its appellate judgment. The result of these decisions was the CMP received final approval as of December 9, 2009. Based on the board’s April 15, 2008 decision approving the CMP for the Thornburgh Destination Resort, TRC submitted an amended application for approval of the final master plan on April 21, 2008 (M-07-2/MA-08-6). By a decision dated October 8, 2008, Hearings Officer Briggs approved the FMP. Opponent and Munson appealed that decision to LUBA (No. 2008-203). On September 9, 2009 LUBA remanded the county’s decision for further proceedings. Gould v. Deschutes County , 59 Or LUBA 435 (2009). TRC appealed LUBA’s decision to the Court of Appeals (A143430). On February 24, 2010 the Court of Appeals affirmed LUBA’s decision. Gould v. Deschutes County , 233 Or App 623, 227 P3d 758 (2010). LUBA issued its notice of appellate judgment on August 17, 2010 remanding the county’s decision. As of the date of this decision, the FMP remand had not been initiated. F. Procedural History: The subject declaratory ruling application was submitted on November 1, 2011 (DR-11-8). By a letter dated November 8, 2011 the Planning Division advised the applicant that the application was incomplete. The applicant submitted the missing information on December 22, 2011 and the application was accepted as complete on that date. Under Section 22.20.040(D)(4) of the county’s development procedures ordinance, because the declaratory ruling sought an initiation of approval determination the application is not subject to the 150-day period for issuance of a final local land use decision under ORS 215.427. A public hearing on the application was held on February 7, 2012. At the hearing, this Hearings Officer received testimony and evidence, left the written evidentiary record open through March 6, 2012, and allowed the applicant through March 13, 2012 to submit final argument pursuant to ORS 197.763. The applicant submitted its final argument on March 13, 2012 and the record closed on that date. On April 12, 2012 the Hearings Officer issued a declaratory ruling that the CMP had been initiated. On April 23, 2012 opponent appealed the decision to the board. By Order 2012-023 dated May 9, 2012 the board elected not to hear the appeal. Opponent appealed the declaratory ruling to LUBA (LUBA No. 2012-042). The appeal raised five assignments of error. By a decision issued January 8, 2013 LUBA denied three assignments of error, declined to address one assignment of error, and remanded the decision for further proceedings concerning the remaining assignment of error. Gould v. Deschutes County , __ Or LUBA __ (2013). On December 23, 2013 the applicant’s attorney David Petersen submitted an application to initiate the remand proceedings (A-13-8). By a letter dated January 3, 2014 to the applicant, Principal Planner Harrison advised the applicant that because county records did not show Mr. Petersen as having written authorization from the applicant to request that the remand proceedings be initiated the application was not valid. By a letter dated January 2, 2014 and received by the county on January 3, 2014, Mr. Petersen submitted written authorization from the applicant to request the remand proceedings be initiated. The county determined the remand proceedings were initiated on January 3, 2014. Therefore, the 90-day period for issuance of a final local decision on remand under ORS Loyal Land Remand A-13-8, DR-11-8 Page 5 of 47 215.435 expires on April 5, 2014. 1 A public hearing on the remand was held on February 4, 2014. At the hearing the Hearings Officer received testimony, with the applicant’s consent left the written record open through February 14, 2014, and allowed the applicant through February 21, 2014 to submit final argument pursuant to ORS 197.763. In addition, staff and the parties agreed that the record for the remand would include the LUBA record on the original declaratory ruling proceeding (hereafter “AR”). The applicant submitted final argument on February 21, 2014 and the record closed on that date. Section 22.24.140 of the development procedures ordinance provides that a continuance or record extension requested or agreed to by the applicant tolls the running of the 150-day period. In previous decisions on remand,2 the Hearings Officer has held that although ORS 215.435(2)(b) authorizes an applicant to extend the 90-day period, Section 22.24.140 is expressly limited to the effect of extending the 150-day period. I adhere to that holding and find the 90-day period expires on April 5, 2014. As of the date of this decision there remain 20 days in the extended 90-day period. G. Ownership: As discussed above, the property comprising the Thornburgh Destination Resort consists of approximately 1,970 acres in eight tax lots. At the time the resort received CMP and FMP approval, seven of those tax lots (TL 5000, 5001, 5002, 7700, 7701, 7800 and 7900) were owned by TRC and the eighth tax lot (TL 8000) was owned by Agnes DeLashmutt. The record indicates the applicant acquired the seven tax lots owned by TRC through foreclosure. 3 H. Request: The applicant requested and the county issued a declaratory ruling that the land use approved through the CMP – the Thornburgh Destination Resort -- has been initiated. 4 Opponent appealed the county’s decision to LUBA and LUBA remanded the decision for further proceedings. I. Public/Private Agency Notice: The record indicates the Planning Division did not send notice of the applicant’s proposal to any public or private agencies. J. Public Notice and Comments: The Planning Division mailed individual written notice of the applicant’s original declaratory ruling request and public hearing to the owners of record of all property located within 750 feet of the subject property. In addition, notice of the original public hearing was published in the Bend “Bulletin” newspaper, and the subject property was posted with a notice of proposed land use action sign. Pursuant to 1 Section 22.20.040 of the county’s development code provides that initiation of approval determinations are not subject to the 150-day period under ORS 215.427. However, neither the county code nor ORS 215.435 exempts such determinations from the 90-day period for final local decisions on remand. 2 E.g., Taylor (A-06-5). A copy of this decision is included in this record as an attachment to a February 10, 2014 electronic mail message from Senior Planner Kevin Harrison to the applicant’s attorney. 3 Opponent’s February 4, 2014 memorandum notes the two property owners were adversaries in the original declaratory ruling proceedings. 4 The applicant also applied for an extension of the CMP (E-11-56) but requested the application be held in abeyance pending resolution of the declaratory ruling request. The record indicates the extension request has since been withdrawn. Loyal Land Remand A-13-8, DR-11-8 Page 6 of 47 Section 22.34.030(A), written notice of the remand initiation request and hearing on the remand was provided only to the parties to the original declaratory ruling proceeding – i.e., applicant, opponent, and TRC. Representatives of the applicant and opponent appeared at the public hearing. K. Lot of Record: As part of the CMP approval (CU-05-20), former Hearings Officer Briggs found the subject property consists of several legal lots of record based on previous county determinations (LR-91-56, LR-98-44, MP-79-159, CU-79-159 and CU-91-68.) III. SUMMARY: The Hearings Officer has found that the scope of this decision on remand is limited by LUBA’s decision to considering whether the Thornburgh Destination Resort was initiated under Section 22.36.020((A)(3). I have found that under the county code provisions addressing procedures on remand I lack authority to reopen the record on remand to receive new evidence. I have found most of the CMP conditions of approval I am required to consider on remand impose contingent obligations on the applicant that did not occur before the destination resort approval became void, and that the applicant’s failure to fully comply with those contingent obligations was the applicant’s fault. I have found that I lack authority to consider whether the applicant “substantially exercised” most of the conditions with which the applicant failed to fully comply because the noncompliance was the applicant’s fault. Based on these findings, I have declared the applicant did not initiate the Thornburgh Destination Resort before the CMP approval became void. IV. CONCLUSIONS OF LAW: SCOPE OF PROCEEDINGS ON REMAND A. Title 22 of the Deschutes County Code, the Development Procedures Ordinance 1. Chapter 22.34, Proceedings on Remand a. Section 22.34.010, Purpose DCC 22.34 shall govern the procedures to be followed where a decision of the County has been remanded by LUBA or the appellate courts or a decision has been withdrawn by the County following an appeal to LUBA. FINDINGS: This matter is before the Hearings Officer on remand from LUBA. Therefore the procedures in Chapter 22.34 are applicable. b. Section 22.34.020, Hearings Body The Hearings Body for a remanded or withdrawn decision shall be the Hearings Body from which the appeal to LUBA was taken, except that in voluntary or stipulated remands, the Board may decide that it will hear the case on remand. If the remand is to the Hearings Officer, the Hearings Officer’s decision may be appealed under DCC Title 22 to the Board, subject to the limitations set forth Loyal Land Remand A-13-8, DR-11-8 Page 7 of 47 herein. FINDINGS: This declaratory ruling was heard by this Hearings Officer and therefore this matter is properly before me on remand from LUBA. c. Section 22.34.030, Notice and Hearing Requirements A. The County shall conduct a hearing on any remanded or withdrawn decision, the scope of which shall be determined in accordance with the applicable provisions of DCC 22.34 and state law. Unless state law requires otherwise, only those persons who were parties to the proceedings before the County shall be entitled to notice and be entitled to participate in any hearing on remand. B. The hearing procedures shall comply with the minimum requirements of state law and due process for hearings on remand and need comply with the requirements of DCC 22.24 only to the extent that such procedures are applicable to remand proceedings under state law. C. A final decision shall be made within 90 days of the date the remand order became effective. FINDINGS: As discussed in the Findings of Fact above, written notices of the remand initiation request and public hearing were provided to the parties to the original declaratory ruling proceedings, and only those parties were allowed to participate in the hearing on remand. The procedures for the public hearing complied with the requirements for hearings in Chapter 22.24 of the county’s development procedures ordinance. A final county decision on remand will be made within 90 days of the date the applicant requested initiation of the remand proceedings. d. Section 22.34.040, Scope of Proceeding A. On remand, the Hearings Body shall review those issues that LUBA or the Court of Appeals required to be addressed. In addition, the Board shall have the discretion to reopen the record in instances in which it deems it to be appropriate. B. At the Board’s discretion, a remanded application for a land use permit may be modified to address issues involved in the remand or withdrawal to the extent that such modifications would not substantially alter the proposal and would not have a significantly greater impact on surrounding neighbors. Any greater modification would require a new application. C. If additional testimony is required to comply with the remand, parties may raise new, unresolved issues that relate to new evidence directed toward the issue on remand. Other issues that were resolved by the LUBA appeal or that were not appealed shall be deemed to be waived and may not be Loyal Land Remand A-13-8, DR-11-8 Page 8 of 47 reopened. FINDINGS: The parties disagree on the scope of the proceedings on remand. Determining the proper scope begins with an examination of LUBA’s decision. As noted above, opponent raised five assignments of error in her LUBA appeal, one of which included three subassignments of error. LUBA denied three assignments of error and found it unnecessary to consider one assignment of error. With respect to the remaining assignment of error, LUBA denied two subassignments of error and part of the third subassignment of error, and sustained the part of the remaining subassignment of error relating to whether the Thornburgh Destination Resort had been initiated under Section 22.36.020(A) of the development procedures ordinance. That code section provides in relevant part: For the purposes of DCC 22.36.020, development action undertaken under a land use approval described in DCC 22.36.010 has been “initiated” if it is determined that: 1. The proposed use has lawfully occurred; 2. Substantial construction toward completion of the land use approval has taken place; or 3. Where construction is not required by the approval, the conditions of a permit or approval have been substantially exercised and any failure to fully comply with the conditions is not the fault of the applicant. In the Hearings Officer’s remanded decision, I made the following findings with respect to application of this section: “No use approved through the Thornburgh CMP has occurred, and no construction was required by the CMP. Therefore, the Hearings Officer finds the applicant must demonstrate the use has been initiated under Subsection (A)(3) of this section, * * *. LUBA held the Hearings Officer misread DCC 22.36.020(A) when I concluded Subsection (3) of the section applies rather than Subsection (A)(2) because LUBA found three of the 38 CMP conditions of approval “require construction.”5 However, LUBA noted that neither the applicant nor opponent assigned as error that part of my decision, and the parties “proceeded as though Subsection (3) applies.” LUBA went on to state: “We therefore limit our consideration to petitioner’s challenges to the hearings officer’s application of DCC 22.36.020(A)(3) and do not further consider whether the hearings officer should have applied DCC 22.36.020(A)(2) instead of DCC 22.36.020(A)(3) in this case.” (Underscored emphasis added.) The applicant’s burden of proof on remand includes argument and new evidence to support its 5 CMP conditions 4, 5 and 33 require the applicant to construct roads and resort amenities if/when the applicant receives additional land use approvals. Section 18.113.040 of the county code states destination resort development is a three-step process of which CMP approval is the first step. Section 18.113.050 states the CMP “provides the framework for development of the destination resort.” Actual resort development cannot take place without FMP approval, subdivision plats, site plans, etc. Loyal Land Remand A-13-8, DR-11-8 Page 9 of 47 position that the destination resort met all three subsections of Section 22.36.020(A). The applicant argues the Hearings Officer can consider its new evidence under Subsections (A)(1) and (A)(2) because it is additional testimony “required to comply with the remand” under Section 22.34.040(C), citing Schatz v. City of Jacksonville , 113 Or App 675, 835 P2d 923 (1992) and Martin v. City of Dunes City , 45 Or LUBA 458 (2003). The Hearings Officer finds the applicant’s reliance on Martin and Schatz is misplaced. In Martin LUBA expressly authorized the city to consider on remand issues raised in the LUBA petition for review although they were not raised in the city’s proceedings below. No such authorization occurred in this case. In Schatz LUBA held that it could not prevent a local government from considering on remand questions other than those addressed in the remand. However, the Court of Appeals’ subsequent decision in McKay Creek Valley Ass’n. v. Washington County , 122 Or App 59, 857 P2d 167 (1993), distinguished Schatz and the cases on which it relied. There, the LUBA decision on appeal discussed multiple sections of a statute but remanded the decision for further local proceedings under only one section, concluding that the parties had not preserved at the local level or before LUBA their claims that another statutory section applied. The court upheld LUBA’s limitation on the county’s proceedings on remand to analysis of the single statutory section identified by LUBA. The Hearings Officer finds the circumstances presented here are similar to those in McKay Creek . Moreover, Section 22.34.040(C) of the county code states “[o]ther issues that were resolved by the LUBA appeal or that were not appealed shall be deemed to be waived and may not be reopened.” This code language is more restrictive than LUBA’s holding in Schatz and I find reflects the county’s intention to limit issues on remand to those not resolved by LUBA. Opponent argues, and the Hearings Officer agrees, that in light of LUBA’s conclusions set forth above and the provisions of Section 22.34.040(C), this remand is limited to application of the “substantially exercised” standard in Section 22.36.020(A) (3), and consideration of Subsections (A)(1) and (2) of that section is beyond the scope of the remand. That is because I find the issue of the application of and compliance with Subsections (1) and (2) of Section 22.36.020(A) was not raised by either party on appeal to LUBA, but was addressed and resolved independently by LUBA. There is no direction from LUBA or the board that I reopen the record in this case and/or allow the applicant to modify the declaratory ruling application on remand to argue the CMP was initiated under Subsections (1) and (2). In the absence of such direction from LUBA or the board, 6 I find I cannot consider Subsections (A)(1) and (2) of Section 22.36.020 in this remand. LUBA’S DIRECTION ON REMAND LUBA’s discussion of opponent’s subassignment of error concerning compliance with Section 22.36.020(A)(3) is lengthy and is set forth below to provide context. “C. The Relevant Conditions of Approval Petitioner’s second subassignment of error addresses the heart of the parties’ dispute. In the first part of this subassignment of error, petitioner 6 The board has defined the scope of remand in previous cases. For example, following LUBA’s remand in Taylor , 53 Or LUBA 290 (2007), the board directed that the remand hearing be a “limited de novo hearing” and restricted the issues to be addressed at the hearing. A copy of my decision on remand in Taylor is included in this record. Loyal Land Remand A-13-8, DR-11-8 Page 10 of 47 contends the hearings officer erroneously limited her consideration to those conditions the hearings officer found to be relevant. In the second part of this subassignment of error, petitioner contends the hearings officer erroneously found that for conditions of approval that were fully satisfied at one time, it does not matter that actions were subsequently taken that may mean the condition is no longer satisfied. 1. Limiting Application of DCC 22.36.020(A)(3) to Relevant CMP Conditions of Approval We set out again for convenience of reference the relevant requirements of DCC 22.36.010(B)(1) and DCC 22.36.020(A)(3). Under DCC 22.36.020(A)(3), to initiate the destination resort ‘use approved in the [CMP] permit’ within the two-year period required by DCC 22.36.010(B)(1): ‘Where construction is not required by the approval, the conditions of a permit or approval [must] have been substantially exercised and any failure to fully comply with the conditions is not the fault of the applicant.’ (Emphasis added.) Simply stated, the parties dispute whether the obligation to substantially exercise ‘the conditions’ applies to all 38 conditions or only to the 15 conditions that the hearings officer found to be relevant. Also, the parties dispute whether the requirements that ‘any failure to fully comply with the conditions [must not be] the fault of the applicant’ applies to all of the conditions of approval, or only to the conditions that the hearings officer found to be relevant. The hearings officer provided the following explanation for her position that the ‘substantially exercised’ and ‘not fault of the applicant’ inquiries that are required by DCC 22.36.020(A)(3) are limited to the 15 conditions she found to be relevant: ‘* * * The only question before me in this declaratory ruling proceeding is whether the destination resort use allowed through the CMP approval has been initiated – not whether the applicant ultimately will be able to develop the resort. The applicant’s ability to put into place all of the destination resort’s components may well be relevant at the FMP and specific development steps. The remaining question raised by the parties under [the language of DCC 22.36.020(A)(3)] is whether all or only some of the 38 conditions of approval in the board’s decisions are relevant in determining whether the use approved through the CMP has been ‘initiated.’ The Hearings Officer finds the answer to that question is Loyal Land Remand A-13-8, DR-11-8 Page 11 of 47 determined by both the language of the conditions of approval and their context within the three-step destination resort process. [DCC] 18.113.050 states the CMP provides the ‘framework’ for development of the destination resort. [DCC] 18.113.040(B) states that in order to develop the destination resort the applicant must submit and obtain approval for the FMP ‘which incorporates all requirements of the County approval for the CMP’ and demonstrates compliance with ‘all conditions of approval of the conditional use permit.’ [DCC] 18.113.040(C) states ‘each element or development phase of the destination resort must receive additional approval through the required site plan approval or subdivision criteria,’ and must be in compliance with the FMP. Consistent with the [destination resort] process context, the conditions of approval in the board’s decisions specify different times for compliance – e.g., some before FMP approval, some before specific development approval, and some at all times – as shown in the following summary of conditions.’ Record 79. The hearings officer then proceeded to separate the 38 conditions of approval into nine categories: (1) ‘Conditions To Be Met Prior to FMP [final master plan] Approval’ (nine conditions); (2) ‘Conditions to Be Met On or With Final Master Plan Submission’ (six conditions); (3) ‘Conditions of FMP Approval’ (one condition); (4) ‘Conditions to Be Met Before or With First Phase of Development/First Tentative Plan and/or First Site Plan’ (two conditions); (5) ‘Conditions to Be Met Before Final Plat Approval’ (two conditions); (6) ‘Conditions to Be Met With/On Final Plat’ (three conditions of approval); (7) ‘Conditions to Be Met Prior to or With Construction’ (two conditions); (8) ‘Conditions to Be Met With Each Development Phase’ (one condition); and (9) ‘Conditions to Be Met At All Times’ (19 conditions). Record 79-81. In rejecting petitioner’s contention that DCC 22.36.020(A)(3) requires that all 38 conditions of approval must be ‘substantially exercised,’ the hearings officer points out that DCC 22.36.020(A)(3) refers to ‘the conditions’ and not ‘all conditions’ and that petitioner’s interpretation would effectively require that the Thornburgh Destination Resort would have to be fully constructed within two years after April 15, 2008 to avoid the CMP decision becoming void under DCC 22.36.010(B)(1). The hearings officer avoided that result by concluding that only those conditions that were required to be completed before FMP approval were relevant in applying DCC 22.36.010(B)(1) and DCC 22.36.020(A)(3) to the April 15, 2008 CMP decision: ‘The Hearings Officer finds the relevant conditions of approval for the subject initiation of use declaratory ruling are limited to those with which the CMP required Loyal Land Remand A-13-8, DR-11-8 Page 12 of 47 compliance before FMP approval. * * *.’ Record 82. The hearings officer is correct that the text of DCC 22.36.020(A)(3) refers to ‘the conditions’ and does not refer to ‘all conditions.’ Of course it is also correct that DCC 22.36.020(A)(3) refers to “the conditions,’ and does not refer to ‘relevant conditions.’ More to the point, it does not refer to ‘conditions of approval that must be satisfied before FMP approval.’ We can appreciate that initiating a complicated project like the Thornburgh Destination Resort by ‘substantially exercis[ing]’ all 38 conditions of approval within two years and demonstrating that any failures to ‘full comply with the [38] conditions is not the fault of the applicant’ is an extremely difficult and perhaps practically impossible obligation in this case, given the way the 38 conditions of approval are written. But that difficulty is equally attributable to (1) the way DCC 22.36.020(A)(3) is written, and (2) the way the 38 conditions of approval are written. If the county had anticipated in its CMP decision that some of the conditions of approval might be difficult or impossible to satisfy fully within two years and therefore potentially cause the CMP decision to become void under DCC 22.36.010(B)(1), the county perhaps could have drafted those 38 conditions of CMP approval as notices of future conditions of approval that would be attached to required future permits and other approvals. And as we have already pointed out, it is highly likely that the county should have applied DCC 22.36.020(A)(2) instead of DCC 22.36.020(A)(3), in which case any problems with ‘substantially exercis[ing]’ the CMP conditions of approval would be irrelevant, so long as the applicant was able to complete ‘[s]ubstantial construction toward completion of the land use approval’ within two years. Whatever the difficulties created by the language of DCC 22.36.020(A)(3) and the wording of the 38 conditions, the hearings officer is not free to remove that difficulty by rewriting DCC 22.36.020(A)(3). The hearings officer essentially rewrote DCC 22.36.020(A)(3) to add the language set out below: ‘Where construction is not required by the approval, the conditions of a permit or approval that must be satisfied before FMP approval have been substantially exercised and any failure to fully comply with the conditions is not the fault of the applicant.’ [Bold emphasis in original.] Under ORS 174.010, the hearings officer is not entitled to add and subtract language from DCC 22.36.020(A)(3). The simplest way to describe the hearings officer’s error is that she assumed that because other approvals would be required to fully comply with some of the 38 conditions of CMP approval those conditions of approval should not be treated as relevant conditions of CMP approval under DCC 22.36.020(A)(3). However, whether it was intentional or unintentional, by imposing conditions of approval that would require the applicant to first secure additional land use permits, the city [sic] effectively required the Loyal Land Remand A-13-8, DR-11-8 Page 13 of 47 applicant to secure those additional permits within the two-year period imposed by DCC 22.36.010(B)(1) to avoid having the CMP permit become void. That result may be harsh in this case, but it cannot be avoided by interpreting DCC 22.36.020(A)(3) to say something that it does not say.” (Underscored emphasis added.) LUBA concluded its discussion with the following instructions: “On remand the hearings officer must consider whether all of the 38 conditions of approval have been ‘substantially exercised,’ including those that required that the applicant seek additional permits and approvals. We do not agree with petitioner that DCC 22.36.020(A)(3) requires that each of the 38 conditions of approval must have been ‘substantially exercised’ within the two-year period, although the county could probably interpret DCC 22.36.020(A)(3) to impose that obligation. Because DCC 22.36.020(A)(3) is ambiguous about whether each of the 38 conditions of approval must separately be ‘substantially exercised,’ we conclude the hearings officer could interpret DCC 22.36.020(A)(3) to require only that the 38 conditions of approval, viewed as a whole, have been ‘substantially exercised,’ even though some of those 38 conditions of approval have not been ‘substantially’ or ‘fully’ ‘exercised,’ or perhaps have not been ‘exercised’ at all. But the hearings officer must be able to find both that the 38 conditions of approval, viewed as a whole, have been substantially exercised and that for any of the 38 conditions of approval where there has been a failure to fully exercise the condition, the applicant is not at fault. Of course the evidentiary record must also be such that it provides substantial evidence for such findings. We suspect that the hearings officer will encounter difficulty in making those findings, but that is the only potential route to a decision under DCC 22.36.020(A)(3) that the use approved by the CMP approval – the Thornburgh Destination Resort – was initiated within the two-year period required by DCC 22.36.010(B)(1) so that the April 15, 2008 CMP decision is not void. Finally, with regard to the conditions that provide contingent or continuing obligations, it may be sufficient for the hearings officer to find that failure to comply with such conditions is not the fault of the applicant because the contingency that would trigger obligations under the conditions does not and may never exist. 14 Similarly, for those conditions that require the applicant to first seek additional land use approvals, the hearings officer may be able to find that the applicant’s failure to secure those additional land use approvals is not the fault of the applicant. We express no position on whether such findings are possible for any of those conditions of approval or whether the evidentiary record would support such findings. But it is simply inaccurate for the hearings officer to say that the applicant would necessarily have to completely construct the Thornburgh Destination Resort to avoid having the April 15, 2008 CMP decision become void under DCC 22.36.010(B)(1) and DCC 22.36.020(A)(3). All that would be required is for the hearings officer to find that for any conditions of approval that are not fully exercised because the applicant Loyal Land Remand A-13-8, DR-11-8 Page 14 of 47 failed to secure additional permits that are necessary to fully comply with such conditions of approval, that failure was not the applicant’s fault. 14 As an example condition 1 provides in part that ‘[a]ny substantial change to the approved plan will require a new application.’ The parties apparently dispute whether there have been such changes. But if there have not been substantial changes to the approved plan, it likely would be sufficient for the hearings officer to find that condition 1 is fully satisfied because there has been and may never be any ‘substantial change to the approved plan.’” The Hearings Officer understands LUBA’s instructions to include the following components: • I must consider all 38 CMP conditions of approval 7 in determining whether the destination resort approval has been “substantially exercised; • I may interpret the “substantially exercised” standard to apply to each of the 38 conditions individually or to the 38 conditions “viewed as whole ;” • I must find that for any of the 38 conditions of approval that were not fully exercised within the two-year CMP initiation period, the applicant is not at fault; and • with respect to the conditions of approval that provide “contingent or continuing obligations,” I may find any failure on the applicant’s part to comply with such conditions is not the applicant’s fault because: • the contingency that would trigger obligations under the condition does not and may never exist; or • the applicant’s failure to obtain any additional prerequisite land use approvals is not the applicant’s fault. At the outset, the Hearings Officer finds there are ambiguities in LUBA’s directions on remand. Each of these is addressed in the findings below. 1. Types of Conditions. LUBA appears to have grouped the 38 CMP conditions into at least three broad categories: those establishing “continuing” obligations, those establishing “contingent” obligations, and those requiring that the applicant seek additional land use approvals. However, it is not clear whether LUBA intended that the analysis of compliance with these three categories to be different. LUBA’s decision states in relevant part: “Finally, with regard to the conditions that provide contingent or continuing obligations, it may be sufficient for the hearings officer to find that failure to comply with such conditions is not the fault of the applicant because the contingency that would trigger obligations under the conditions does not and may never exist.” [Footnote omitted.] Similarly, for those conditions that require the 7 Hearings Officer Briggs’ decision imposed 36 conditions of approval and two more were added by the board. Condition 14 includes five sub-conditions. Therefore, there are 42 conditions and portions thereof. Loyal Land Remand A-13-8, DR-11-8 Page 15 of 47 applicant first to seek additional land use approvals, the hearings officer may be able to find that the applicant’s failure to secure those additional land use approvals is not the fault of the applicant.” (Emphasis added.) LUBA’s use of the term “such conditions” after the phrase “conditions that provide contingent or continuing conditions” suggest no distinction between these two types of conditions for purposes of the “substantially exercised” analysis. However, they are different. “Contingent obligations” are those that are triggered by a contingency. In contrast, “continuing obligations” may or may not be tied to a contingent event. The language of the 38 CMP conditions of approval varies considerably. Some conditions state they are applicable “at all times” and do not expressly identify any contingencies (e.g., Condition 29, requiring compliance with a memorandum of understanding (MOU)). Some include neither “at all times” nor contingency language (e.g., Condition 23, stating no permission is given to use Barr Road for resort access). Some include express contingency language (e.g., Condition 34, stating that when native vegetation is disturbed it must be restored). And some do not have express contingency language but as interpreted by LUBA may have an implied contingency (e.g., Condition 1, stating any substantial change to the approved CMP will require a new land use application). Adding to this ambiguity is LUBA’s direction that noncompliance with continuing and contingent conditions may be excused if the triggering contingency “does not and may never exist.” The quoted phrase, which uses the present and future tense, is not consistent with the “substantially exercised” analysis that focuses on compliance with the CMP conditions during the two-year CMP initiation period – i.e., during a specific period in the past . Finally, LUBA’s separate reference to conditions that require the applicant to secure additional land use approvals suggests it may have believe these conditions should be treated differently than as other “contingent” conditions. As noted above, LUBA stated that “by imposing conditions of approval that would require the applicant first to secure additional land use permits” the county “effectively required the applicant to secure those additional permits within the two-year period imposed by DCC 22.36.010(B)(1) to avoid having the CMP permit become void.” It is not clear whether this language means LUBA considered irrelevant any contingency that might be included in the conditions requiring additional land use approvals, and that the only question is whether they were fully complied with during the two-year initiation period. The Hearings Officer finds the most reasonable way to proceed in light of these ambiguities in LUBA’s directions is to begin the “substantially exercised” analysis with an examination of the language of each of the CMP conditions I found were not relevant in order to determine the nature and the timing of action required of the applicant. That examination must include a determination of whether there are contingent obligations. I must then determine whether and to what extent the condition was complied with, and if any noncompliance was the applicant’s fault. 2. Fault. The principal issue on remand is whether any nonperformance of CMP conditions of approval during the two-year CMP initiation was the applicant’s fault. As discussed in detail in the findings below concerning compliance with individual conditions, the parties disagree as to the significance of the applicant’s role in the non-occurrence of a contingency when determining fault. The crux of that disagreement is whether the applicant could have proceeded with resort development and obtained final FMP approval and subsequent land use approvals necessary for resort development within the 3 ½-year period between receiving CMP approval and Loyal Land Remand A-13-8, DR-11-8 Page 16 of 47 expiration of the approval. The term “fault” is not defined in this section or elsewhere in Title 22. The Hearings Officer finds the context of Section 22.36.020(A)(3) provides some assistance in ascertaining the meaning of the term. Chapter 22.36 deals with the duration, extension and expiration of approvals. Section 22.36.010(C)(1)(d) authorizes the county to grant an extension of a land use approval if: the applicant was unable to begin or continue development or meet conditions of approval during the approval period for reasons for which the applicant was not responsible, including, but not limited to, delay by a state or federal agency in issuing a required permit. (Emphasis added.) The above-underscored language is consistent with the ordinary definition of the term “fault” – i.e., “liability, accountability, blame, responsibility.” Webster’s New World Dictionary and Thesaurus, Second Edition . It is not clear why Section 22.36.020 does not have the same language as used in Section 22.36.010 since both provisions address the duration of approvals. And inasmuch as the language used in Section 22.36.010 is consistent with the ordinary definition of “fault” I find there is no reason to conclude use of the term “fault” in Section 22.36.020 was intended to impose a stricter standard. Therefore, I find that for purposes of applying the “fault” standard in Section 22.36.020(A)(3) it is appropriate to define that term to mean “reasons for which the applicant was not responsible, including but not limited to, delay by a state or federal agency in issuing a required permit.” FINDINGS ON COMPLIANCE WITH CONDITIONS 1. Conditions Found To Have Been Fully Complied With In Remanded Decision. In the Hearings Officer’s remanded decision I concluded that CMP Conditions of Approval 3, 8, 9, 10, 11, 13, 14A, 14B, 15, 19, 22, 24, 30, 36, and 37 had been fully exercised on or before April 21, 2008 when TRC submitted its FMP for approval, and therefore prior to November 18, 2011 when the two-year period for initiation of the CMP expired. 8 These are the conditions I found were “relevant” to the initiation of approval determination. My findings as to each of these 15 conditions or parts thereof are set forth below. Condition 3: “Applicant shall provide a signed grant of right-of-way from the U.S. Department of the Interior – Bureau of Land Management for an access easement connection to U.S. Highway 126, prior to submission of a Final Master Plan application.” Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 10 that the applicant’s predecessor TRC “has submitted the signed right-of-way agreement,” and therefore this condition was satisfied. In his February 7, 2012 memorandum, Paul Dewey argues the applicant cannot rely on the BLM right-of- way agreement submitted by TRC because it “is personal to” TRC and does not run with the land. The Hearings Officer finds I need not reach this issue because the condition of approval required that the signed grant of right-of-way be 8 LUBA found the expiration date was November 18, 2011. The Hearings Officer found all 15 conditions or parts thereof had been fully exercised no later than April 21, 2008. Loyal Land Remand A-13-8, DR-11-8 Page 17 of 47 submitted “prior to submission of a Final Master Plan application” and the record indicates that action was taken. Therefore, I find Condition 3 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 8: “Plan review and approval of water supply plans for phase 1 will be required by Oregon Department of Human Services – Drinking Water Program (DHS-DWP) prior to Final Master Plan Approval.” Hearings Officer Briggs’ decision approving the FMP states at page 11: “The applicant has received approval from the Oregon Department of Human Services for the Final Master Plan for Thornburgh Resort. It has been approved as a ‘Master Plan’ by DHS-DWPO and therefore will not require further review at the different levels of development so long as they work with a registered professional engineer.” Again, the Hearings Officer finds I need not reach the question of whether the water master plan is “personal” to TRC because the condition of approval required that the water supply plans be approved by DHS “prior to Final Master Plan approval,” and the record indicates that action was taken by DHS before Hearings Officer Briggs’ approved the FMP. Gould appealed Hearings Officer Briggs’ decision approving the FMP to LUBA which remanded the decision. The Court of Appeals affirmed LUBA’s remand, and as of the date of this decision the remand had not been initiated. Consequently, the FMP approval is not final. However, Gould’s appeal did not challenge Condition of Approval 8, and as discussed in detail in the findings below, LUBA’s remand, affirmed by the Court of Appeals, was limited to the Thornburgh wildlife mitigation plan. Therefore, the Hearings Officer finds nothing in the remand precludes my finding that Condition 8 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 9: “Applicant shall designate the location of all utility lines and easements that burden the property on the FMP.” Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 11 that the applicant’s predecessor TRC: “* * * has submitted a map with the Modification of Application showing the location of all utility lines and easements that currently burden the property.” Based on this finding, which was not challenged on appeal, the Hearings Officer finds Condition 9 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Loyal Land Remand A-13-8, DR-11-8 Page 18 of 47 Condition 10: “Applicant shall comply with all applicable requirements of state water law as administered by OWRD [Oregon Water Resources Department] for obtaining a state water right permit and shall provide documentation of approval of its application for a water right permit prior to approval of the final master plan * * *.” Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 11 that the applicant’s predecessor TRC: “* * * obtained approval of a water right application. See MA 08- 6, Ex. K2. It will become final upon a showing that the required mitigation has been provided for. A condition of approval is imposed to require documentation that mitigation and a water rights permit has [sic] been issued for each development phase.” Opponents argued the applicant cannot rely on TRC’s obtaining a water right prior to FMP approval because TRC subsequently rescinded an agreement to obtain water rights for the resort. The Hearings Officer disagrees. As discussed above, LUBA’s remand of the FMP was limited to the Thornburgh wildlife mitigation plan. I find nothing in the remand that precludes my finding Condition of Approval 10 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. And as discussed throughout this decision, whether the applicant can secure the necessary water rights to develop the resort is not the question before me in this declaratory ruling proceeding. Condition 11: “At the time of submission for Final Master Plan (FMP) approval, Applicant shall include a written plan for entering into cooperative agreements with owners of existing wells within a two-mile radius of Applicant’s wells. The plan shall include a description of how Applicant will provide notice to affected well owners and of the terms and conditions of an option for well owners to enter into a written agreement with Applicant under which Applicant will provide indemnification to well owners in the event of actual well interference as a result of Applicant’s water use. The plan shall remain in effect for a period of five years following full water development by Applicant.” Hearings Officer Briggs’ decision approving the Thornburgh FPM states at pages 11 and 12 that the applicant’s predecessor TRC: “* * * has submitted its written plan for entering into cooperative agreements with owners of existing wells within a two-mile radius of the resort. The plan describes how the applicant will provide notice to affected well owners including the terms and conditions under which well owners may enter into an indemnification agreement with Thornburgh in the event of actual interference as a result of the resort owner’s water use. Specific terms and conditions of the plan were developed in cooperation with County staff and the Oregon Water Resources Department. COA 11 is Loyal Land Remand A-13-8, DR-11-8 Page 19 of 47 satisfied.” Based on this finding, which was not appealed, the Hearings Officer finds Condition 11 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 13: “Applicant shall specify all recreational facilities within the proposed resort as part of the final master plan submittal.” Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 12 that the applicant’s predecessor TRC: “* * * has specified the recreational facilities within the proposed resort. They have also shown locations of recreational facilities along with the layout of trail heads, trails and viewpoints. COA 13 is satisfied.” In her appeal from the FMP approval Gould challenged Hearings Officer Briggs’ finding. LUBA found this challenge without merit. Therefore, based on Hearings Officer Briggs’ finding the Hearings Officer finds Condition of Approval 13 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 14A: “Applicant and its successors shall do the following to ensure that all open space used to assure the 50% open space requirement of Section 18.113.060(D)(1) is maintained in perpetuity: A. Applicant shall submit for approval, as part of the Final Master Plan, a delineation of the Open Space that is substantially similar to the area shown in the Open Space Plan submitted as Ex. 9, B-14 to the ‘Memorandum of Applicant,’ in a response to public comments dated September 28, 2005. Open Space shall be used and maintained as ‘open space areas’ as that term is used in DCC 18.113.030(E).” Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 12 that the applicant’s predecessor TRC: “* * * has proposed approximately 1,293 acres of open space (Exhibit A1.1 of MA-08-6). This is divided into three categories, golf open space, common open space and buffer open space. The acreage that is included as open space constitutes approximately 66% of the entire acreage of the resort. The map submitted as part of the Modification of Application is substantially the same as the Open Space map that was approved as part of the CMP. COA 14A is satisfied.” Loyal Land Remand A-13-8, DR-11-8 Page 20 of 47 Based on this finding, which was not appealed, the Hearings Officer finds Condition 14A was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 14B: “The CC&R’s, as modified and submitted to the County on December 20, 2005, shall be further revised such that Section 3.4 retains the first two sentences, but then the balance of 3.4 is replaced with the following: At all times the Open Space shall be used and maintained as ‘open space areas.’ The foregoing sentence is a covenant and equitable servitude, which runs with the land in perpetuity and is for the benefit of all of the Property, each Owner, The Declarant, and the Association, and the Golf Club. All of the foregoing entities shall have the right to enforce covenant and equitable servitude. This Section 3.4 may not be amended except if approved by affirmative vote of all Owners, the Declarant, the Golf Club and the Association.” Hearings Officer Briggs’ decision approving the Thornburgh FPM states at page 13 that the applicant’s predecessor TRC: “* * * has submitted CC&R’s which contain the above-referenced language. See M 07-2, Ex. H4. COA 14B is satisfied.” Based on this finding, which was not appealed, the Hearings Officer finds Condition 14B was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 15: “Applicant shall obtain an approved Water Pollution Control Facility (WPCF) permit (as described in DCC 18.113.070(L) prior to application for Final Master Plan.” Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 13 that the applicant’s predecessor TRC: “* * * has obtained the necessary permit from the Department of Environmental Quality. It is included as Exhibit J1 and is permit number 102900. COA 15 is satisfied.” As with the water master plan approval addressed in Condition of Approval 8 discussed above, opponents argue the WPCF permit is “personal” to TRC and cannot be relied upon by the applicant to demonstrate initiation of the CMP. Again, the Hearings Officer finds I need not reach this question because the condition of approval required that the WPCF permit be obtained prior to application for FMP approval, and the record indicates that action was taken before Hearings Officer Briggs’ approved the FMP. In addition, because LUBA’s remand of the FMP was limited to the wildlife mitigation plan, the Hearings Officer finds nothing in the remand that precludes my finding Condition 15 was Loyal Land Remand A-13-8, DR-11-8 Page 21 of 47 fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 19: “Applicant shall implement a ‘Wildfire/Natural Hazard Protection Plan’ for the resort, as identified in Ex. 15,B-29 of the burden of proof statement. Prior to approval of the Final Master Plan and each subdivision and site plan, Applicant shall coordinate its evacuation plans through that development phase with the Deschutes County Sheriff’s Office and the Redmond Fire Department. At the same time, Applicant shall also coordinate its plans for the movement of evacuees over major transportation routes with the Oregon State Police and the Oregon Department of Transportation.” Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 14 that the applicant’s predecessor TRC: “* * * has submitted a revised fire evacuation plan which shows the fire evacuation routes during the various phases of the development. A letter from former Deschutes County Sheriff, Les Stiles, and a letter from Tim Moor, Fire Chief of the Deschutes County Rural Fire Protection District #1 is included, stating the evacuation plan is adequate for this stage of the development. A condition of approval is imposed to ensure that it is addressed in each development phase.” Based on this finding, which was not appealed, the Hearings Officer finds Condition 19 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 22: “Applicant shall submit final covenants, conditions and restrictions to the County prior to Final Master Plan approval. The final covenants, conditions and restrictions adopted by the developer and amendments thereto shall conform in all material respects to this decision and the requirements of the DCC. Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 15 that the applicant’s predecessor TRC: “* * * has submitted covenants, conditions and restrictions. The CC&R’s comply with the requirements of the Deschutes County Code. A condition of approval is imposed to require conformance with the FMP CC&R’s through the life of this development.” Based on this finding, which was not appealed, the Hearings Officer finds Condition 22 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Loyal Land Remand A-13-8, DR-11-8 Page 22 of 47 Condition 24: “Applicant shall complete annexation of the property in any area of development into Deschutes County Rural Fire Protection District No 1 before commencing combustible construction in the area.” Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 15 that the applicant’s predecessor TRC: “* * * has submitted a letter from the Deschutes County Rural Fire Protection District No 1 stating that the property has been annexed to the district.” Although compliance with Condition of Approval 24 was not required prior to submission of the FMP for approval, the Hearings Officer finds on the basis of Hearings Officer Briggs’ findings, which were not appealed, that Condition 24 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 30: “Applicant shall submit a detailed traffic circulation plan, delineating resort access roads, resort internal circulation roads and resort secondary emergency ingress/egress roads, prior to Final Master Plan Approval.” Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 16 that the applicant’s predecessor TRC: “* * * has submitted the required plan. COA 30 is satisfied.” Based on this finding, which was not appealed, the Hearings Officer finds Condition 30 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 36: “Applicant shall coordinate with the Sheriff’s Office and its designated representative to address all public safety needs associated with the resort and the development process.” Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 17 that: “A letter from the Deschutes County Sheriff’s Office has been submitted as attachment F6. The applicant has coordinated public safety planning for the resort with the Sheriff’s Office through the ‘Public Safety Protection Report for Thornburgh Destination Resort’ attached as Exhibit F5.” Although compliance with Condition 36 was not required prior to submission of Loyal Land Remand A-13-8, DR-11-8 Page 23 of 47 the FMP for approval, the Hearings Officer finds on the basis of Hearings Officer Briggs’ findings, which were not appealed, that Condition 36 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. Condition 37 (Condition 36 in Board’s Decision on Remand): “Applicant shall modify the Overnight and Density Calculations chart presented to the Board at the appeal hearing on December 20, 2005 by replacing it with the Overnight and Density Calculations chart included at page 25 in the Applicant’s final legal argument, dated January 3, 2006, as show below. * * * Applicant shall present the corrected Phasing Plan and Overnight and Density Calculations chart, consistent with this condition, during the Final Master Plan approval process.” Hearings Officer Briggs’ decision approving the Thornburgh FMP states at page 18: “The corrected Phasing Plan and Overnight and Density Calculations chart has been submitted as part of the FMP application. COA 37 is satisfied.” Based on this finding, which was not appealed, the Hearings Officer finds Condition 37 was fully complied with no later than April 21, 2008 when TRC’s modified FMP application was submitted. These findings either were not challenged or were upheld on appeal to LUBA. Therefore, the Hearings Officer finds the applicant fully complied with these conditions and portions thereof. 2. Remaining Conditions of Approval: In the Hearings Officer’s remanded decision, I found Conditions 1, 2, 4, 5, 6, 7, 12, 14C, 14D, 14E, 16, 17, 18, 20, 21, 23, 25, 26, 27, 28, 29, 31, 32, 33, 34, 35 and 38 were not relevant to the initiation of use determination primarily because the CMP approval decision specified times for compliance with these conditions that were after CMP approval. I found that to be consistent with the multi-phase destination resort approval process in Chapter 18.113 of the county code the applicant could not be required or expected to comply with all 38 conditions within the two- year period for initiation of the destination resort approval. LUBA’s decision acknowledged the difficulty in applying the “substantially exercised” initiation standard to destination resort development, stating in relevant part: “We can appreciate that initiating a complicated project like the Thornburgh Destination Resort by ‘substantially exercis[ing]’ all 38 conditions of approval within two years and demonstrating that any failures to ‘full comply with the [38] conditions is not the fault of the applicant’ is an extremely difficult and perhaps practically impossible obligation in this case, given the way the 38 conditions of approval are written. But that difficulty is equally attributable to (1) the way DCC 22.36.020(A)(3) is written, and (2) the way the 38 conditions of approval are written. If the county had anticipated in its CMP decision that some of the Loyal Land Remand A-13-8, DR-11-8 Page 24 of 47 conditions of approval might be difficult or impossible to satisfy fully within two years and therefore potentially cause the CMP decision to become void under DCC 22.36.010(B)(1), the county perhaps could have drafted those 38 conditions of CMP approval as notices of future conditions of approval that would be attached to required future permits and other approvals.” Nevertheless, LUBA held the Hearings Officer must consider all 38 conditions, determine whether they were fully complied with or “substantially exercised” during the two-year period, and if they were not fully complied with, determine whether that noncompliance was the applicant’s fault. At the outset, because neither party assigned it as error before LUBA, the Hearings Officer adheres to my interpretation of the term “substantially exercised” in my remanded decision – i.e., performing or carrying out a condition of approval to a significant degree but not completely. The following findings address each of the remaining CMP conditions of approval based on LUBA’s directions and my understanding thereof. Condition 1: “Approval is based upon the submitted plan. Any substantial change to the approved plan will require a new application. In Appendix A to its burden of proof on remand the applicant argues it has substantially exercised this condition for the following reasons: “The language of this condition provides that it is automatically met unless a substantial change to the approved plan is proposed. The onl y affirmative obligation, to submit a new application, is contingent on an event – a substantial change to the approved plan – that has not occurred. Thus, to date the condition is and always has been met, and the condition is fully complied with. Alternatively, the condition has been substantially exercised because – based on the language of the condition (i.e., what action was required to be done and by when) – the applicant has continuously complied with it to the maximum degree possible. Therefore, the condition has been ‘performed or carried out . . . to a significant degree.’ This performance equates to full compliance, or if not, then any failure to fully comply is not the fault of Loyal because the condition imposes a contingent obligation (to file a new application) and the contingency that would trigger the obligation (a substantial change to the approved plan) does not and may never exist.” As discussed above, LUBA identified Condition 1 as imposing a “contingent obligation.” LUBA’s conclusion appears not to support the applicant’s view that the non-occurrence of a contingency equates with either full compliance or substantial exercise. Rather, LUBA seems to assume the non-occurrence of a contingency is only a potential excuse for nonperformance of the condition. The applicant and opponent disagree whether there was any substantial change to the approved destination resort during the initiation period (April 15, 2008 to November 18, 2011). The record indicates neither the applicant nor its predecessor TRC formally proposed any change to the plan through a new land use application or otherwise. However, opponent argues Loyal Land Remand A-13-8, DR-11-8 Page 25 of 47 a number of the applicant’s actions and inactions following CMP approval constitute such changes. These include the transfer of ownership of the majority of resort land from TRC to the applicant, the applicant’s failure to re-execute several agreements between TRC and public agencies, TRC’s revocation of a water right agreement in October of 2009, and the assigning of a lease from TRC’s associate Genesis to Agnes DeLashmutt in March of 2010. The Hearings Officer finds the transfer of resort property ownership from TRC to the applicant does not constitute a substantial change to the approved destination resort because under Section 22.36.050 of the development procedures ordinance land use permits run with the land and are transferable to the original applicant’s successors in interest. Thus the applicant is bound by the terms of the CMP approval. 9 The subsequent events opponent cites are the same ones she argued in the original declaratory ruling proceedings and before LUBA should result in certain CMP conditions no longer being satisfied. LUBA rejected that argument, stating: “The Hearings Officer found that once a CMP condition of approval has been fully satisfied, she was not required to consider subsequent events that may call into question whether the current property owner has any rights under agreements that may have been entered into or plans that may have been approved to satisfy those conditions. With the caveat that Loyal Land will of course have to ultimately be successful in securing any rights that may be necessary to construct the Thornburgh Destination Resort in conformance with all applicable conditions of approval, we agree with the hearings officer that for purposes of determining whether the Thornburgh Destination Resort was initiated under DCC 22.36.020(A)(3) within the time period required by DCC 22.36.010(B)(1), the hearings officer is not required to consider events that postdate the dates CMP conditions of approval were fully satisfied.” (Emphasis added.) The Hearings Officer finds the above-underscored language in LUBA’s decision was directed at the CMP conditions that I found were relevant and had been fully satisfied. Condition 1 is not one of those conditions. Nevertheless, I find the principle underlying LUBA’s conclusion as to those conditions is equally applicable to the question of compliance with Condition 1. That is, the applicant must ultimately secure any rights necessary to construct the resort, and the fact that certain events occurred after CMP approval do not necessarily preclude the applicant from doing so. For that reason, I find that because the applicant did not propose a change to the approved destination resort during the initiation period, the contingency requiring additional land use approvals was not triggered, and therefore the applicant fully complied with Condition 1. Condition 2: “All development in the resort shall require tentative plat approval through Title 17 of the County Code, the County Subdivision/Partition Ordinance, and/or Site Plan Review through Title 18 of the County Code, the Subdivision Ordinance.” 9 The Hearings Officer understands that part of opponent’s concern with this transaction was that it would result in two different – and adverse – entities would be attempting to develop the resort. However, the property owners now appear to be working together. Loyal Land Remand A-13-8, DR-11-8 Page 26 of 47 The Hearings Officer finds that based on LUBA’s characterization of Condition 1 as imposing a contingent obligation, Condition 2 also imposes a contingent obligation – i.e., before there can be “development in the resort” the applicant must obtain subdivision, partition and/or site plan approval. Neither Hearings Officer Briggs’ decision nor the county code defines destination resort “development.” However, I find that in the context of the DR Zone requirements in Chapter 18.113, and in particular Section 18.113.060 establishing standards for destination resorts, that term means physical improvements to the land such as roads and other infrastructure, landscaping, resort amenities and housing. The record indicates that as of November 18, 2011 the applicant had not sited or constructed any resort development on the subject property Therefore, the contingency – resort development – was not triggered during the destination resort initiation period. The applicant argues it fully complied with, or substantially exercised, Condition 2 for the following reasons: “Under Titles 17 and 18 of the DCC, a tentative plat and site plan review application cannot be submitted until there is a final, approved FMP. DCC 18.113.040.C. There is not, and never has been, an approved FMP not subject to remand or appeal. The only affirmative obligation, to submit tentative plat and site plan review applications, is contingent on an event – a final, approved FMP – that has not occurred. Thus, to date the condition is and always has been met, and the condition is fully complied with. Alternatively, the condition has been substantially exercised because – based on the language of the condition (i.e., what action was required to be done and by when) – the applicant has continuously complied with it to the maximum extent possible. Therefore the condition has been ‘performed or carried out . . . to a significant degree.’ Substantial sums have been spent on preparing a tentative plat application for the first phase and other permitting in anticipation of a final, approved FMP (AR 334). This performance equates to full compliance, or if not, then any failure to fully comply is not the fault of Loyal because the condition imposes a contingent obligation (to obtain tentative plat and/or site plan approval) and the contingency that would trigger the obligation (a final, approved FMP) does not and may never exist.” The Hearings Officer has found LUBA’s treatment of Condition 1 effectively precludes a finding of full compliance with any condition imposing a contingent obligation where the contingency has not occurred. I find the language of LUBA’s decision also suggests that as long as the contingency did not occur during the destination resort initiation period the applicant’s noncompliance with the condition is excused. However, opponent argues that with respect to this condition -- and all others that were not fully complied with during the destination resort initiation period – I must find the applicant was not at fault for the non-occurrence of the contingency . For example, opponent argues that with respect to Condition 2 the relevant question is whether the applicant’s failure to initiate the FMP remand and obtain final FMP approval after August 2010 was due to reasons for which the applicant was not responsible. I find this argument is consistent with, and a logical extension of, the concept of “fault” discussed in the findings above The applicant argues its failure to initiate the FMP remand was due to four circumstances outside its control, each of which is discussed in the findings below. Loyal Land Remand A-13-8, DR-11-8 Page 27 of 47 a. BLM Approval of Wildlife Mitigation Plan The applicant argues, and the Hearings Officer agrees, that because LUBA remanded the county’s FMP approval decision solely to address the proposed wildlife habitat mitigation plan which was required to be approved by the BLM, the applicant could not initiate the FMP remand until it received the BLM’s plan approval. I also agree with the applicant that it had no control over the manner and timing of the BLM’s approval process. The applicant states the BLM did not approve the mitigation plan until February 23, 2011, citing an electronic mail message dated February 23, 2011 from BLM wildlife biologist Bill Dean to Kameron DeLashmutt of TRC. Attached to this message is an undated draft letter from BLM field manager Molly Brown identifying “areas where Thornburgh Resort may conduct mitigation actions” and stating that “all mitigation actions must be coordinated through the BLM.” The applicant argues that in light of what it characterizes as the BLM’s “delay” in approving the wildlife mitigation plan the applicant could not initiate the FMP remand until February 23, 2011 at the earliest. The applicant also argues it would not have been possible for the applicant to obtain all necessary post-FMP land use approvals in the nine months between February 23rd and November 18, 2011. Opponent responds, and the Hearings Officer concurs, that I cannot consider the BLM correspondence because it is new evidence submitted on remand, and I do not have authority to reopen the record to include this new evidence. As set forth above, Section 22.34.040(A) states the board has the discretion to reopen the record on remand when it deems it appropriate and distinguishes between the board and the “hearings body.” Subsection (C) refers to “additional testimony . . . required to comply with the remand” without reference to the board. Opponent argues, and I agree, that when read together these provisions mean only the board can reopen the record on remand. As discussed in the findings above, the board did not issue any order or other direction authorizing me to reopen the record. The applicant has not identified, nor has the Hearings Officer found, evidence in the record that demonstrates when the BLM approved the wildlife habitat mitigation plan. Therefore, there is not substantial evidence from which I can find the applicant’s delay in initiating the FMP remand and obtaining final FMP and subsequent land use approvals was due to a delay in the BLM’s approval of the wildlife mitigation plan. If my decision is appealed to the board and the board agrees to hear the appeal, the applicant may request that the board reopen the record to consider its new evidence. b. TRC’s Bankruptcy and Other Economic Considerations The applicant argues TRC’s bankruptcy and subsequent loss of most of the resort property through foreclosure, along with the recession that began in 2008, constituted an economic crisis not of the applicant’s making that prevented it from initiating the FMP remand and obtaining final FMP approval and subsequent land use approvals. Specifically, the applicant argues that before November 18, 2011 TRC was “fighting for its life.” TRC’s bankruptcy Debtor’s Disclosure Statement (hereafter “debtor’s statement”) (AR 314-352) describes in detail the history of the Thornburgh Destination Resort and TRC’s financial struggles. The following summary is drawn from that document. According to the debtor’s statement, TRC and Agnes DeLashmutt worked with several financial partners to develop funding for the Thornburgh Destination Resort “with mixed results.” (AR 317). The funding/ownership arrangements were complex. According to TRC, the market for the destination resort was strong in 2006 when TRC received county approval of the destination Loyal Land Remand A-13-8, DR-11-8 Page 28 of 47 resort, reflected by TRC receiving more than 550 reservations representing potential real estate sales “of about $250 million from potential buyers.” (AR 319.) However, according to TRC, opponent’s appeal of the county’s CMP approval, which was filed in May of 2006 and ultimately resolved in December of 2009 with final CMP approval, was “time-consuming and costly” for TRC. (AR 320.) According to the debtor’s statement, between 2006 and 2008 TRC and Agnes DeLashmutt were able to obtain financing for the Thornburgh Destination Resort, but they subsequently defaulted on at least one note. TRC ultimately obtained a large “bridge loan,” secured by the resort property, from Sterling Bank and two of its investment partners in order to continue resort development. (AR 322.) However, in early 2008 these partners began steps to purchase TRC’s note from Sterling Bank. One of these investment partners was Jeff Parker. (AR 321-323.) Parker subsequently entered into an agreement with Terrence Larsen regarding purchasing the Sterling Bank note. (AR 324.) Lengthy litigation and arbitration between TRC, Parker and Larsen followed, culminating in TRC’s bankruptcy filing. (AR 323-325.) The record indicates Parker and Larsen are owners of or have interests in the applicant Loyal Land. (AR 545.) On March 1, 2011 the note for the Sterling bank “bridge loan” was transferred to Central Oregon Investment Holdings (COIH) of which Parker was an owner. On March 7, 2011 the applicant Loyal Land LLC was formed. Thereafter COIH transferred the note to the applicant and the applicant made preparations for a foreclosure sale of TRC’s property. On March 11, 2011 TRC filed for Chapter 11 bankruptcy in U.S. District Court for the District of Oregon (Case No. 11- 31897-tmb11). On March 22, 2011 the applicant filed a motion in the bankruptcy court for relief from the automatic stay to pursue foreclosure of TRC’s Sterling Bank note. On June 16, 2011 the bankruptcy court granted the applicant’s motion for relief from stay and the applicant scheduled a foreclosure sale for August of 2011. At the foreclosure sale on August 31, 2011 the applicant purchased TRC’s resort property and received a trustee’s deed. By an order dated February 1, 2012 the bankruptcy court dismissed the bankruptcy and closed the case. Based on this sequence of events it appears TRC became aware that it was in danger of losing the destination resort property in early March 2011, approximately five months after the August 2010 remand of the county’s FMP approval decision, and filed for bankruptcy to prevent or delay the foreclosure sale. The debtor’s statement lists the resort property as one of TRC’s assets, and therefore the Hearings Officer believes the automatic stay in the bankruptcy proceedings would have prevented TRC and the applicant from disposing of the resort property. The stay was not lifted as to the applicant until June of 2011, five months before the expiration of the destination resort initiation period, and the applicant did not acquire title to the subject property until the foreclosure sale in August of 2011, three months before the expiration of the initiation period. Opponent argues that TRC’s filing for bankruptcy and subsequent loss of the resort property through foreclosure were caused by the actions of TRC and the applicant and therefore were the applicant’s fault. Opponent also asserts that because to obtain CMP approval TRC had to demonstrate to the county that it had the financial resources to develop the resort, the applicant cannot argue such resources were not available to develop the resort within the two-year initiation period. The Hearings Officer finds the debtor’s statement shows the relationship between TRC, its investors/lenders, and the applicant was fraught with conflict and ultimately spawned federal and state court litigation and bar complaints. The applicant argues these circumstances, Loyal Land Remand A-13-8, DR-11-8 Page 29 of 47 coupled with poor “local, regional and state economic conditions” resulting from the “Great Recession,” and in particular a dramatic deterioration in the residential housing market, hindered TRC in obtaining and retaining the financing necessary to pursue resort development during the two-year initiation period. The applicant’s burden of proof on remand notes the value of the resort property was sufficient to obtain a $46 million loan in 2006 (AR 321) but that by the time the property was sold to the applicant in the August 2011 foreclosure sale its value had dropped to only $8 million (AR 794). In addition, the applicant submitted new evidence concerning the effect of the recession on the Bend real estate market. Opponent argues, and I agree, that I cannot consider that new evidence. The Hearings Officer agrees with opponent there is no evidence in the record of a direct connection between the general economic downturn which began in 2008 and Thornburgh’s financial difficulties which the record indicates clearly predated the recession. For example, while the record indicates the value of the resort property diminished dramatically during that time, it is not clear to what extent the recession rather than TRC’s own financial difficulties caused that devaluation. I find the debtor’s statement is evidence supporting opponent’s claim that the conflict between TRC and its investors/lenders – including the applicant and its owners Parker and Larsen – contributed significantly to TRC’s financial difficulties. Therefore, I find this is substantial evidence that TRC and the applicant were partly and perhaps primarily responsible for TRC’s inability to develop the destination resort within the initiation period. c. Opponent’s Appeals The applicant argues opponent is responsible for its failure to initiate the FMP remand and secure final FMP approval because she caused “over four years of delays between May 2006 and August 2010 with appeals of the CMP and FMP, the BLM’s decision on the access road right-of-way, the Department of Water Resources’ approval of the project’s water rights permit, and others,” but that “only her appeal of the CMP tolled expiration of the CMP.” The Hearings Officer finds there is no question opponent’s appeals of the CMP and FMP contributed to the nearly five-year period that elapsed between the county’s original CMP approval in November of 2005 and LUBA’s remand of the county’s FMP approval in August of 2010. Opponent argues her appeals were simply the result of the applicant’s failure to propose an approvable destination resort. The Hearings Officer finds this argument is not particularly compelling given the complex process of obtaining destination resort approval and the fact that TRC received final approval following remand. Opponent also claims the pending appeals did not prevent the applicant from moving forward with resort development, apparently believing the applicant could or should have risked significant funds to develop the resort without final FMP. I concur with the applicant that this argument is not realistic. Nevertheless, I agree with opponent that she cannot reasonably be blamed for the applicant’s delay in initiating the FMP remand and obtaining final FMP approval. Destination resort proposals are complex, involve large land areas, and require permits from several public agencies. Consequently, they are very likely to generate intense public interest, controversy and appeals. d. Futility of Initiating FMP Remand Finally, the applicant argues that any effort by TRC or Loyal Land to initiate the FMP remand would have been an exercise in futility because under the county’s DR Zone provisions the applicant “could not possibly have obtained all the remaining approvals before the CMP expired on November 18, 2011.” The applicant also notes that had TRC or the applicant attempted to Loyal Land Remand A-13-8, DR-11-8 Page 30 of 47 obtain subdivision/partition plat and/or site plan approvals necessary for resort development without first obtaining final FMP approval they would have violated the CMP conditions of approval. To illustrate its “futility” argument, in its February 11, 2014 memorandum the applicant sets out the following hypothetical timeline for resort development following final CMP approval on December 9, 2009: “Day 1: CMP approved Day 2: FMP application filed Day 32: FMP application deemed complete Day 182: County approves FMP (150 day limit under ORS 215.427(1)) Day 203: 21-day appeals period expires, FMP Day 204: Tentative plat application filed, Phase 1 Day 234: Phase 1 tentative plat application deemed complete Day 384: County approves tentative plat, Phase 1 Day 405: 21-day appeals period expires, Phase 1 tentative plat Day 406: Construction drawings filed, Phase 1 Day 436: Construction drawings approved Day 437: Final plat application filed, Phase 1 [footnote omitted] and tentative plat application filed, Phase 2 Day 466: Construction completed, Phase 1 Day 467: Phase 2 tentative plat deemed complete Day 497: County approves final plat, Phase 1 Day 617: County approves tentative plat, Phase 2 Day 638: 21-day appeals period expires, Phase 2 tentative plat Day 639: Construction drawings filed, Phase 2 Day 669: Construction drawings approved Day 670: Final plat application filed, Phase 2 Day 699: Construction completed, Phase 2 Day 730: County approves final plat, Phase 2.” Based on this timeline, the applicant argues the earliest date it could have obtained final plat approval for the first two phases of the seven-phase destination resort development was December 9, 2011 – after the November 18, 2011 expiration of the destination resort initiation period. Opponent responds that the applicant’s timeline is artificially long because it assumes the county would take the entire 30-day period to determine the completeness of each tentative plat application and the entire 150-day period to approve the FMP and the final plats. It is difficult to predict the length of the local government approval process for any conditional use application, let alone a complex application for a destination resort. However, the Hearings Officer agrees with opponent that the applicant’s timeline may be unrealistically long. FMP approval could be more straightforward than CMP approval inasmuch as under Section 18.113.100 the standard for FMP approval is “that all standards of the CMP have been met” and the requirements for FMP approval under Section 18.113.090 are not as detailed or complex as those required for CMP approval under Sections 18.113.060 and 18.113.070. The county could take the full 30-day period to determine the completeness of the final FMP approval application, but might not need the full 150-day period to issue a final local decision. The county might not need 150 days to approve a tentative subdivision plat under Section 17.16.100 of the county’s subdivision/partition ordinance because the most significant tentative plat approval criteria Loyal Land Remand A-13-8, DR-11-8 Page 31 of 47 already have been addressed through CMP and FMP approval. 10 Finally, I note the applicant’s timeline includes three 21 -day appeal periods although under Section 22.32.015 the appeal period is 12 days. Based on the foregoing discussion, the Hearings Officer finds the applicant’s projected timeline must be shortened by at least 27 days, and likely could be reduced by considerably more days. As a result, I find it would have been possible for TRC to obtain approval of the final FMP and the tentative and final plats for the first two phases of the Thornburgh Destination Resort before November 11, 2011. 11 Securing those approvals would not have constituted full compliance with all CMP conditions because, as discussed in the findings below, several conditions require action related to resort construction. Nevertheless, it would have been full compliance with at least 9 of the remaining CMP conditions requiring actions contingent on final plat approval. It also could have provided the foundation for a finding that the CMP conditions of approval “viewed as a whole” were substantially exercised given the significance of obtaining CMP and FMP approval and tentative and final plat approval for the first two development phases. The applicant has the burden of demonstrating its failure to fully comply with Condition 2 was not its fault. The applicant argued its delay in initiating the FMP remand and obtaining final FMP and subsequent approvals was the fault of the BLM (for its delay in approving the wildlife mitigation plan), of opponent (for filing appeals), of the recession (for forcing TRC into bankruptcy), and in effect of the county (for creating a lengthy destination resort approval process and requiring that the entire process be completed within two years). The Hearings Officer has found the applicant’s nonperformance cannot be excused for these reasons. And I have found the record supports opponent’s claim that TRC and the applicant were at fault for this failure because they were responsible to a considerable degree for TRC’s financial crisis, bankruptcy filing and loss of most resort property to foreclosure. Having concluded the applicant was at fault for failing to fully comply with Condition 2, the Hearings Officer must determine whether the applicant nevertheless may demonstrate the Thornburgh Destination Resort was “initiated” based on full compliance with or substantial exercise of the remaining CMP conditions. I find this question arises because of the language of Section 22.36.020(A)(3) which provides that a use has been “initiated” if: * * * the conditions of a permit or approval have been substantially exercised and any failure to fully comply with the conditions is not the fault of the applicant. (Emphasis added.) The meaning of the term “any failure” is not explained or defined in Title 22. The ordinary definition of the term “any” includes: “1 one, no matter which, of more than two (any boy may go); 2 some (has he any pain?); 3 without limit (any number can play); 4 even one or the least amount of (I haven’t any dimes); 5 every (any child can do it); * * *.” 10 For example, Section 17.16.100 requires the tentative plat application to demonstrate the subdivision would contribute to “orderly development and land use patterns in the area,” etc. 11 It is likely these approvals would be appealed, but as discussed in my remanded decision the initiation period for each of those approvals would have been tolled until any such appeals were resolved. Loyal Land Remand A-13-8, DR-11-8 Page 32 of 47 Webster’s New World Dictionary and Thesaurus, Second Edition . Based on this definition, the Hearings Officer finds the term “any” can mean one, some, or every, depending on the context. As discussed in the findings above, I have found the remainder of Chapter 22.36, and particularly Section 22.36.010 which authorizes approval extensions, provides interpretive context for Section 22.36.020. Section 22.36.010(C)(1)(d), which is the corollary of Section 22.36.020(A)(3), states the county may extend an approval if: The County determines that the applicant was unable to begin or continue development or meet conditions of approval during the approval period for reasons for which the applicant was not responsible, * * *. This section does not use the term “any failure” and appears to create broad authorization to grant extensions by describing alternate bases – i.e., the inability to “begin or continue development” or to “meet conditions of approval.” This broader language likely reflects the fundamental difference between extensions and initiations of approvals. Extensions must be requested before an approval expires whereas a request to declare an approval has been initiated occurs after – perhaps long after -- the approval expired. For that reason, the Hearings Officer finds it reasonable to conclude the drafters of Chapter 22.36 intended to make the standards for initiation of expired approvals more rigorous than those for extending approvals that are still valid. Consequently, I find use of the term “any failure” in Section 22.36.020(3)(A) was intended to be a strict standard – i.e., the term “any” was intended to mean that “one” or “even one” failure to fully comply with a condition of approval would preclude initiation of the use. Therefore, because I have found the applicant failed to comply with Condition 2 and that failure was its fault, I must find the applicant did not initiate the Thornburgh Destination Resort prior to November 18, 2011. Even assuming for purposes of discussion that the term “any failure” in Section 22.36.020(3)(A) does not create the “one-strike-and-you’re-out” situation described above, the Hearings Officer finds the same analysis leads to the conclusion that most of the remaining CMP conditions of approval also were not fully complied with and that failure was not excused. These additional conditions fall into the same category as Condition 2. That is, they: • expressly or by implication impose contingent obligations that are triggered to at least some degree by post-FMP filings or approvals (tentative or final plat or site plan, or resort development or construction); • the applicant failed to fully comply with these conditions before November 18, 2011; and • the applicant made the same arguments I rejected as to excusing its failure to fully comply with Condition 2. Because LUBA’s decision requires that I consider all CMP conditions in my analysis on remand, I address each of these similar contingent conditions in the findings below. Condition 4: “Subject to U.S. Department of the Interior-Bureau of Land Management (BLM) approval, any secondary emergency ingress/egress across the BLM-owned land or roadways shall be improved to a minimum width of 20 feet with an all-weather surface capable of supporting a Loyal Land Remand A-13-8, DR-11-8 Page 33 of 47 60,000-lb. fire vehicle. Emergency secondary resort access roads shall be improved before any Final Plat approval or issuance of a building permit, whichever comes first.” The Hearings Officer finds this condition imposes a “contingent obligation” – i.e., before obtaining final plat approval or a building permit for resort development, the applicant must provide a secondary emergency resort access across BLM land and improve it to the identified standards and with the BLM’s approval. The record indicates the contingency was not triggered during the resort initiation period because the applicant did not construct or improve secondary emergency access for the resort before November 18, 2011. The applicant argues this failure was not its fault because: “* * *(1) the roads are not needed yet; and (2) the condition imposes a contingent obligation, but none of the contingencies that would make the obligation mandatory have yet occurred.” As was the case with Condition 2, the Hearings Officer finds the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant. And I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period for the reasons discussed in the findings above concerning Condition 2. The applicant also argues it “substantially exercised” Condition 4 because: “ * * * [T]he applicant has in fact obtained permits from BLM to construct the three secondary emergency access roads, has designed and engineered these roads, and has built the north access road to Highway 126, which is necessary to serve the proposed first phase of the resort (AR 333; see also Lindley affidavit and discussion in accompanying letter regarding DCC 22.26.020.A.2 [sic] . Therefore the condition has been ‘performed or carried out . . . to a significant degree but not completely.’” The Hearings Officer finds the Lindley affidavit is new evidence that I cannot consider because I lack authority to reopen the record on remand. I also find the better evidence of the BLM right- of-way to which the applicant refers is the right-of-way grant and maps at AR 573-579. The Hearings Officer concurs with the applicant that obtaining right-of-way across BLM land for the required emergency resort access is a significant prerequisite to constructing the access road. However, based on my findings above, I do not believe I have authority under Section 22.36.020(A)(3) to consider whether the condition was “substantially exercised’ since I have found the applicant’s failure to fully comply with Condition 4 was its fault. And even if I do have such authority, I find the term “substantially exercised” as I have defined it – i.e., performing or carrying out a condition of approval to a significant degree but not completely -- cannot reasonably be expanded to include performance of prerequisite acts rather than the specific actions required by the condition. For these reasons, I find the applicant cannot and did not demonstrate this condition was “substantially exercised.” Condition 5: “The developer will design and construct the road system in accordance with Title 17 of the Deschutes County Code (DCC). Road improvement plans shall be approved by the Road Department prior to construction.” Loyal Land Remand A-13-8, DR-11-8 Page 34 of 47 The Hearings Officer finds this condition imposes a contingent obligation – prior to construction of resort development the applicant must design and construct the resort system and obtain county approval of the improvement plans. The record indicates the contingency was not triggered during the resort initiation period because the applicant did not construct any resort development. The applicant’s burden of proof on remand states with respect to this condition: “Design of the roads cannot occur until there is an approved tentative plat, because without an approved tentative plat the designer does not know where the roads are to be located. Without final road locations, the Road Department also cannot review any proposed road designs. As explained above with regard to Condition #2, significant funds have been expended toward completion of the tentative plat for the first phase, but an approved tentative plat is contingent on an event -- a final, approved FMP – that has not occurred. Because this event has not yet occurred, no affirmative action is yet required or even possible under this condition. Thus, to date this condition is and always has been met, and fully complied with. Alternatively, the condition has been substantially exercised because – based on the language of the condition (i.e., what action was required to be done and when) – the applicant has continuously complied with it to the maximum extent possible. Therefore the condition has been ‘performed or carried out . . . to a significant degree.’ This performance equates to full compliance, or if not, then any failure to fully comply is not the fault of Loyal because the condition imposes contingent obligations (to design, obtain approval of, and construct roads) and the contingencies that would trigger the obligations (a final, approved FMP and an approved tentative plat) do not and may never exist.” As with Conditions 2 and 4, the Hearings Officer finds the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. Assuming the Hearings Officer can consider whether Condition 5 was “substantially exercised,” I find the applicant did not design or improve resort roads during the initiation period so did not perform or carry out the specific actions required by the condition. Condition 6: “All easements of record or right-of-ways shall be shown on any final plat.” The Hearings Officer finds this condition imposes a contingent obligation – when any final plat is submitted for approval it must show all easements of record and rights-of-way. The record indicates the contingency was not triggered during the resort initiation period because the applicant did not submit a final plat for approval. The applicant argues it either fully complied with this condition because the event triggering the contingency did not occur or it substantially exercised this condition because it expended significant funds toward completion of a tentative plat for the first phase of the resort development. As was the case with contingent conditions discussed above, the Hearings Officer finds the applicant’s failure to fully comply with this condition was not excused by the county’s destination Loyal Land Remand A-13-8, DR-11-8 Page 35 of 47 resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. I further find that even if I can consider whether the applicant “substantially exercised” Condition 6, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition -- submitting a final plat showing easements of record and rights-of-way. Condition 7: “All new proposed road names must be reviewed and approved by the Property Address Coordinator prior to final plat approval.” The Hearings Officer finds this condition imposes a contingent obligation – prior to obtaining final subdivision/partition plat approval the applicant must obtain road name approval from the county. The record indicates the contingency was not triggered during the resort initiation period because the applicant did not submit a final plat for approval. As was the case with the contingent conditions discussed above, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. I further find that assuming I have authority to consider whether the applicant “substantially exercised” Condition 7, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition -- submitting a final plat for approval. Condition 12: “Commercial, cultural, entertainment or accessory uses provided as part of the destination resort shall be contained within the development and shall not be oriented to public roadways. Commercial, cultural and entertainment uses allowed within the destination resort shall be incidental to the resort itself. As such, these ancillary uses shall be permitted only at a scale suited to serve visitors to the resort. Compliance with this requirement shall also be included as a condition of FMP approval.” The Hearings Officer finds this condition establishes several contingent obligations on the applicant and one on the county. With respect to the applicant, this condition provides that when it develops commercial, cultural, entertainment of accessory uses in the resort, such uses must meet the described location, orientation, scope and scale parameters. With respect to the county, this condition provides that when the county grants FMP approval compliance with this requirement must be included as a condition of approval. The record indicates the contingency was not triggered during the initiation period because the applicant did not provide the identified resort amenities. The applicant argues it has fully complied with this condition because “it is a condition of FMP approval” and compliance was “shown on the CMP and on the FMP application.” The Hearings Officer finds this argument misses the mark. Inclusion of these obligations as a condition of FMP approval is an obligation of the county . With respect to the actions required of the applicant, as discussed above with respect to other contingent conditions, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating Loyal Land Remand A-13-8, DR-11-8 Page 36 of 47 the FMP remand and obtaining final FMP and additional approvals during the initiation period. I further find that if I have authority to consider whether Condition 12 was “substantially exercised,” I find it was not because the applicant did not perform or carry out to any degree during the initiation period the specific action required by the condition -- providing the described resort elements in the required manner. Condition 14C: “All deeds conveying all or any part of the subject property shall include the following restriction: This property is part of the Thornburgh Resort and is subject to the provisions of the Final Master Plan for Thornburgh Resort and the Declaration of Covenants, Conditions and Restrictions of Thornburgh Resort. The Final Master Plan and the Declaration contain a delineation of open space areas that shall be maintained as open space areas in perpetuity.” The Hearings Officer finds this condition creates a contingent obligation – i.e., when resort property is sold, the deed(s) must include the specified language. The record indicates the contingency was not triggered during the initiation period because the applicant did not sell any resort property. For the same reasons discussed in the findings above concerning the other contingent conditions, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. I further find that if I have authority to consider whether Condition 14C was “substantially exercised,” the applicant did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – including the required language in deeds conveying resort property. Condition 14D: “All open space areas shall be clearly delineated and labeled on the Final Plat.” The Hearings Officer finds this condition imposes a contingent obligation – i.e., when a final plat is submitted for approval it must show all open space areas. The record indicates this contingency was not triggered during the initiation period because the applicant did not submit a final plat for approval. As is the case with the other contingent conditions discussed above, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. Further, if I have authority to consider whether the applicant “substantially exercised” Condition 14C, I find the applicant did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., submitting a final plat with all open space areas delineated and labeled. Condition 16: “All temporary structures shall be limited to a maximum of 18 months on the resort site.” The Hearings Officer finds this condition imposes a continuing obligation – i.e., if the applicant Loyal Land Remand A-13-8, DR-11-8 Page 37 of 47 sites temporary structures on the resort site they are subject to a maximum duration of 18 months. The record indicates this contingency was not triggered during the resort initiation period because the applicant did not place any temporary structures on the resort. For the same reasons discussed in the findings above concerning the other contingent conditions, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. And assuming I have authority to consider whether Condition 16 was “substantially exercised,” I find the applicant did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., limiting any temporary structures in the resort to 18 months’ duration. Condition 17: “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 ingress/egress roadway improvements.” The Hearings Officer finds this condition imposes a contingent obligation – i.e., when development occurs within the resort it must meet the identified fire safety requirements. The record indicates the contingency was not triggered because the applicant did not provide any development within the resort during the initiation period. Again, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. Assuming I have authority to consider whether the applicant “substantially exercised” Condition 17, I find it did not do so because the applicant did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., providing development on the resort meeting the specific fire protection requirements. Condition 18: “No development shall be allowed on slopes of 25% or more on the site.” The Hearings Officer finds this condition imposes a contingent obligation – i.e., when development occurs it cannot be placed on slopes of 25% or more. The record indicates the contingency was not triggered during the initiation period because the applicant did not provide any resort development. Again, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. I further find that if I have authority to consider whether the applicant “substantially exercised” Condition 18, the applicant did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., providing development on the resort outside slopes of 25% or more. Condition 20: “The cumulative density of the development at the end of any phase shall not exceed a maximum density of 0.72 dwelling units per acre (including residential dwelling units (excluding Loyal Land Remand A-13-8, DR-11-8 Page 38 of 47 visitor-oriented overnight lodging).” The Hearings Officer finds this condition imposes a contingent obligation – i.e., when development occurs it cannot cause the specified maximum density to be exceeded. The record indicates this contingency was not triggered during the initiation period because the applicant did not provide any resort development. Again, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. And assuming I have authority to consider whether the applicant “substantially exercised” Condition 20, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., providing development on the resort complying with the maximum density. Condition 21: “Each phase of the development shall be constructed such that the number of overnight lodging units meets the 150 overnight lodging unit and 2:1 ratio of individually owned units to overnight lodging unit standards set out in DCC 18. II3.060(A)(l) and 18.113.060(D)(2). Individually owned units shall be considered visitor oriented lodging if they are available for overnight rental use by the general public for at least 45 weeks per calendar year through one or more central reservation and check-in services. In lieu of construction, Applicant may provide financial assurance for construction of the required overnight lodging. In addition to complying with the specific requirements of DCC 18.113.050(U), 1-5, Applicant, its successors and assigns, shall at all times maintain (1) a registry of the individually owned units subject to deed restriction under DCC 18.113 .070 (U)(2 ), requiring they be available for overnight lodging purposes; (2) an office in a location reasonably convenient to resort visitors as a reservation and check-in facility at the resort; and (3) a separate telephone reservation line and a website in the name of "Thornburgh Resort," to be used by members of the public to make reservations. As an alternative to or in addition to (3), Applicant may enter into an agreement with a firm (booking agent) that specializes in the rental or time-sharing of resort property, providing that Applicant will share the information in the registry required by (1) and cooperate with the booking agent to solicit reservations for available overnight lodging at the resort. If Applicant contracts with a booking agent, Applicant and the booking agent shall cooperate to ensure compliance with the requirements of DCC 18.113.070(U)(5), by filing a report on January 1 of each year with the Deschutes County Planning Division.” The Hearings Officer finds this condition establishes a number of contingent obligations related to the resort’s overnight lodging units. Specifically, I find the condition requires that when the applicant constructs each phase of the resort development, it must: (1) construct such units so that the 2:1 ratio of individually owned units to overnight lodging units, calculated as described in the condition, is maintained; (2) provide financial insurance for overnight lodging construction; (3) maintain a registry of deed-restricted individually owned lots; (4) maintain a rental reservation office; (5) maintain a separate rental reservation phone number, or contract with a rental booking agent; and (6) cooperate with any booking agent to ensure compliance with overnight lodging requirements in the DR Zone. The record indicates the contingency was not triggered during the initiation period because the applicant did not construct any phase of the resort, including individually owned units or Loyal Land Remand A-13-8, DR-11-8 Page 39 of 47 overnight lodging units. Again, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. And assuming I have authority to consider whether the applicant “substantially exercised” Condition 21, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., providing overnight lodging development on the resort in compliance with the specifications. Condition 25: “Applicant shall submit a detailed erosion control plan with the first Tentative Plat or Site Plan, whichever comes first.” The Hearings Officer finds this condition imposes a contingent obligation – i.e., when the applicant submits its first tentative plat or site plan it must also submit a detailed erosion plan. The record indicates this contingency was not triggered during the initiation period because the applicant did not submit a tentative plat or site plan for approval. As with the other contingent conditions discussed above, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. Assuming I have authority to consider whether the applicant “substantially exercised” Condition 25, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., submitting a detailed erosion plan with the first tentative plat or site plan for approval. Condition 26: “Lot size, width (frontage), coverage, off-street parking and setbacks, including solar setbacks, are permitted as described in Applicant's Exhibit 8, B-24a in the Burden of Proof document, subject to review during the subdivision approval process to confirm that there will be safe vehicle access to each lot. Compliance with the dimensional standards shall be confirmed during subdivision approval for each development phase. All multifamily units, commercial structures, and other resort facilities are exempted from meeting the solar setback standards.” The Hearings Officer finds this condition appears to impose a contingent on the county – i.e., verifying compliance with the applicant’s proposal for lot size, width (frontage), coverage, dimensional standards, safe vehicle access, etc. However, inasmuch as Hearings Officer Briggs probably did not have authority to require action by the county through a condition of approval, I find the more reasonable reading of this condition is that it imposed a contingent obligation on the applicant to demonstrate compliance with the listed factors when a tentative subdivision plat is submitted for approval. In addition, I find this condition also put the applicant on notice that certain structures are exempt from meeting solar setbacks. The record indicates the contingency was not triggered during the initiation period because the applicant did not submit a tentative subdivision plat for approval. Again, the Hearings Officer finds the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and Loyal Land Remand A-13-8, DR-11-8 Page 40 of 47 additional approvals during the initiation period. And assuming I have authority to consider whether the applicant “substantially exercised” Condition 26, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., demonstrating compliance with the listed factors when a tentative subdivision plat is submitted for approval. Condition 27: “Road width shall be consistent with the requirements set forth in the County's subdivision ordinance. DCC Chapter 17.36.” The Hearings Officer finds this condition by implication imposes a contingent obligation requiring the applicant to demonstrate consistency with the county’s subdivision road requirements when it submits tentative subdivision plat(s) for approval. The record indicates the contingency was not triggered during the initiation period because the applicant did not submit any tentative subdivision plats for approval. As with the other contingent conditions discussed above, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. Assuming I have authority to consider whether the applicant “substantially exercised” Condition 27, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., demonstrating consistency with the county’s subdivision road standards when submitting a tentative subdivision plat for approval. Condition 28: “Applicant shall abide at all times with the MOU with BLM, dated September 28, 2005, regarding mitigation of impacts on surrounding federal lands, to include wildlife mitigation and long-range trail planning and construction of a public trail system. The mitigation plan adopted by Applicant in consultation with Tetra Tech, ODFW and the BLM shall be adopted and implemented throughout the life of the resort.” Although the intent of this condition language is not entirely clear, the Hearings Officer finds the most reasonable interpretation is that it imposes a contingent obligation – i.e., the applicant must abide by its MOU with the BLM and adopt the wildlife mitigation plan as soon as the resort exists on the ground and consequently has the potential to affect wildlife habitat and public trail systems on adjacent federal lands. The record indicates this contingency was not triggered during the initiation period because the applicant did not establish any resort development on the resort property. However, again I find the applicant’s failure to fully comply with Condition 28 during that period was not the applicant’s fault because I find the county code’s timeline for the multi-step process of obtaining land use approvals to develop the Thornburgh Destination Resort was what effectively caused the triggering of the contingency in Condition 28 – i.e., establishing development on the resort property that could impact adjacent federal lands -- not to occur during the initiation period. Assuming I have authority to consider whether the applicant “substantially exercised” Condition 28, I find it did not do so because it did not perform or carry out to any degree the specific action required by the condition – i.e., establishing development on the resort property that has the potential to affect wildlife habitat and public trail systems on adjacent federal lands. Loyal Land Remand A-13-8, DR-11-8 Page 41 of 47 Condition 29: “Applicant shall abide at all times with the MOU with ODOT, regarding required improvements and contributions to improvements on ODOT administered roadways (Agreement Number 22759, dated 10/10/05).” The Hearings Officer finds the language of this condition is similar to that in Condition 28 in that it appears to impose a contingent obligation – in this case, a requirement that the applicant make improvements and contributions to improvements on ODOT administered roadways if/when it provides development that impacts such roadways. The record indicates the applicant did not establish any resort development that could have impacts on ODOT roadways during the two-year CMP initiation period. Again I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. And assuming I have authority to consider whether the applicant “substantially exercised” Condition 29, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., making improvements and contributions to improvements on ODOT administered roadways if/when it provides development that impacts such roadways. Condition 31: “All exterior lighting must comply with the Deschutes County Covered Outdoor Lighting Ordinance per Section 15.10 of Title 15 of the DCC.” The Hearings Officer finds this condition by implication imposes a contingent obligation – i.e., if/when resort development is established on the property all exterior lighting must comply with the county’s outdoor lighting ordinance. The record indicates the contingency was not triggered during the initiation period because the applicant did not establish any resort development. As with the other contingent conditions discussed above, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. And assuming I have authority to consider whether the applicant “substantially exercised” Condition 31, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., establishing development on the resort property with exterior lighting meeting the county’s standards. Condition 33: The Resort shall, in the first phase, provide for the following: A. At least 150 separate rentable units for visitor-oriented lodging. B. Visitor-oriented eating establishments for at least 100 persons and meeting rooms which provide eating for at least 100 persons. C. The aggregate cost of developing the overnight lodging facilities and the eating Loyal Land Remand A-13-8, DR-11-8 Page 42 of 47 establishments and meeting rooms required in DCC 18.113.060(A)(1) and (2) shall be at least $2,000,000 (in 1984 dollars). D. At least $2,000,000 (in 1984 dollars) shall be spent on developed recreational facilities. E. The facilities and accommodations required by DCC 18.113.060 must be physically provided or financially assured pursuant to DCC 18.113.11 0 prior to closure of sales, rental or lease of any residential dwellings or lots. The Hearings Officer finds this condition imposes a number of contingent obligations concerning overnight lodging, visitor-oriented eating establishments and meeting rooms, recreational facilities, and financial assurance to be provided in the first phase of resort development (items A, B, C and D) and certain facilities and accommodations to be provided prior to closure of sales, rental or lease of residential dwellings or lots (item E). The record indicates the contingency was not triggered during the two-year initiation period because the applicant did not establish any development on the resort property. Again, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. I further find that assuming I have authority to consider whether the applicant “substantially exercised” Condition 33, it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., establishing development of the first phase of the resort meeting the described facility and amenity requirements. Condition 34: “Where construction disturbs native vegetation in open space areas that are to be retained in a 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 Hearings Officer finds this condition imposes a contingent obligation – i.e., where/if resort construction disturbs native vegetation in retained open space areas in substantially natural condition the applicant must restore the native vegetation. The record indicates the contingency was not triggered during the two-year initiation period because the applicant did not construct anything on the resort property. As with the other contingent conditions discussed above, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. I further find that assuming I have authority to consider whether the applicant “substantially exercised” Condition 34, it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., establishing development on the resort property that could disturb native vegetation in retained open space areas. Condition 35: “The contract with the owners of units that will be used for overnight lodging by the general Loyal Land Remand A-13-8, DR-11-8 Page 43 of 47 public shall contain language to the following effect: "[Unit Owner] shall make the unit available to [Thornburgh Resort/booking agent] for overnight rental use by the general public at least 45 weeks per calendar year through a central reservation and check-in service." The Hearings Officer finds this condition by implication creates a contingent obligation imposing the described requirements if/when overnight lodging units are offered for rent through a contract between the applicant and the unit owners. The record indicates the contingency was not triggered during the initiation period because the applicant did not establish any overnight lodging units on the resort property. As with the other contingent conditions discussed above, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. And assuming I have authority to consider whether the applicant “substantially exercised” Condition 35, I find it did not do so because it did not perform or carry out to any degree during the initiation period the specific action required by the condition – i.e., establishing overnight lodging units on the resort property meeting the described requirements. . Condition 38 (Condition of Approval 37 in Board’s Decision on Remand): “Applicant shall demonstrate compliance with DCC 18.113.070(D) by submitting a wildlife mitigation plan to the County as part of its application for Final Master Plan approval. The County shall consider the wildlife mitigation plan at a public hearing with the same participatory rights as those allowed in the CMP approval hearing.” The Hearings Officer finds Condition 38 imposes contingent obligations on both the applicant and the county. With respect to the applicant, the obligation is that when the applicant submits its application for FMP approval it must also submit a wildlife mitigation plan demonstrating compliance with Section 18.113.070(D) of the county code. With respect to the county, the condition provides that when the wildlife mitigation plan is submitted, the county must consider the plan at a public hearing with the same participatory rights as provided in the CMP approval hearing. The record indicates the applicant submitted a wildlife mitigation plan with its application for FMP approval and the FMP and wildlife mitigation plan were approved through a public process. However, the FMP approval was remanded by LUBA for the sole purpose of reviewing the adequacy of the wildlife mitigation plan. The applicant did not initiate the FMP remand and therefore the FMP and its findings with respect to the applicant’s compliance with Section 18.113.070(D) are not final. The Hearings Officer finds the contingency was triggered during the initiation period with the applicant’s filing of the FMP and wildlife mitigation plan on April 21, 2008. However, I find the applicant failed to fully comply with Condition 38 because it did not obtain final FMP approval during the initiation period. And as discussed above with respect to the other contingent conditions, I find the applicant’s failure to fully comply with this condition was not excused by the county’s destination resort approval timeline or the other reasons given by the applicant, and I find the applicant was responsible for its delay in initiating the FMP remand and obtaining final FMP and additional approvals during the initiation period. Assuming the Hearings Officer has authority to consider whether the applicant “substantially exercised” Condition 38, I concur with the applicant that it did so by submitting the wildlife mitigation plan and defending its adequacy on appeal. Loyal Land Remand A-13-8, DR-11-8 Page 44 of 47 The Hearings Officer finds the three remaining CMP conditions merit warrant separate discussion. Condition 14E: “Any substantial change to the open space approved under this decision will require a new land use permit.” The Hearings Officer finds the language of this condition is similar to that in Condition 1 which LUBA found imposes a contingent obligation. Therefore I find Condition 14E also imposes a contingent obligation – i.e., if the applicant proposes a change to the approved open space it must submit a new land use application. The record indicates the contingency was not triggered during the initiation period because the applicant did not propose a change to the approved open space. Therefore I find the applicant fully complied with Condition 14E. Condition 23: “No permission to use or improve Barr Road as access to the Resort is given or implied by this decision.” The Hearings Officer finds the most reasonable reading of this condition is that it simply puts the applicant on notice of what the CMP approval did not approve. However, assuming the condition can be read to impose a continuing obligation – i.e., prohibiting use of Barr Road for resort access – I find the applicant fully complied with Condition 23 during the initiation period because the record indicates the contingency was not triggered during that time as the applicant did not improve Barr Road or attempt to use it for resort access. Condition 32: “No permission to install a helicopter landing zone (helipad) at the Resort is given or implied by this decision.” The Hearings Officer find the language of this condition is similar to Condition 23 in that it simply puts the applicant on notice of what is not approved by the CMP approval. However, assuming Condition 32 can be read to impose a continuing obligation – i.e., prohibiting installation of a helipad at the resort – I find the applicant fully complied with Condition 32 during the initiation period because the record indicates the applicant did not establish a helipad. For the reasons set forth above, the Hearings Officer has found that of the 27 conditions and parts thereof that I considered not to be relevant in my remanded decision, the applicant fully complied with 4 conditions (Conditions 1, 14E, 23 and 32) and failed to fully comply with 23 conditions or parts thereof. I also found the applicant’s failure to fully comply with those conditions was its fault. Finally, assuming I have authority to consider whether conditions were “substantially exercised” when the applicant’s failure to fully comply with them was the applicant’s fault, I found one condition was “substantially exercised” (Condition 38), 3. Conditions “Substantially Exercised” When “Viewed As A Whole. As noted in the findings above, the Thornburgh Destination Resort approval is subject to 42 conditions of approval and portions thereof. The Hearings Officer has found the applicant fully complied with 19 conditions and portions thereof – i.e., the 15 conditions or portions thereof I Loyal Land Remand A-13-8, DR-11-8 Page 45 of 47 found in my remanded decision had been fully complied with prior to CMP approval, and the four additional conditions I found were fully complied with in this decision on remand. In addition, I found 22 conditions and portions thereof were not fully complied with and that such failure was the applicant’s fault. Finally, I found that assuming I have authority to consider whether the 22 conditions not fully complied with still could be “substantially exercised,” one was “substantially exercised” and the rest were not. For convenience of reference, the Hearings Officer sets out again LUBA’s holding with respect to application of the “substantially exercised” standard to the conditions of approval “viewed as a whole:” “Because DCC 22.36.020(A)(3) is ambiguous about whether each of the 38 conditions of approval must separately be ‘substantially exercised,’ we conclude the hearings officer could interpret DCC 22.36.020(A)(3) to require only that the 38 conditions of approval, viewed as a whole, have been ‘substantially exercised,’ even though some of those 38 conditions of approval have not been ‘substantially’ or ‘fully’ ‘exercised,’ or perhaps have not been ‘exercised’ at all. But the hearings officer must be able to find both that the 38 conditions of approval, viewed as a whole, have been substantially exercised and that for any of the 38 conditions of approval where there has been a failure to fully exercise the condition, the applicant is not at fault. (Emphasis added.) The applicant and opponent disagree as to application of the above-underscored language. Opponent argues in her February 4, 2014 submission that it only authorizes the Hearings Officer to undertake a text-and-context analysis of Section 22.36.020(A)(3) to determine if it was intended to be applied to the conditions of approval “viewed as a whole.” Opponent claims such analysis leads to the conclusion the “substantially exercised” standard must be interpreted to apply to each condition of approval and not to the conditions “viewed as a whole.” In contrast, the applicant’s burden of proof assumes LUBA’s decision approved the “viewed as a whole” interpretation without the need for a determination of the drafter’s intent. I believe the better reading of the above-quoted language is the one suggested by the applicant – i.e., that LUBA authorized me to interpret the “substantially exercised” standard to apply to the 38 conditions individually or “viewed as a whole,” and further authorized me to find the destination resort approval was “substantially exercised” even if not all conditions were fully exercised as long as any noncompliance with conditions was not the applicant’s fault. The parties also do not agree about what showing the applicant must make to establish that the 38 CMP conditions of approval were “substantially exercised” when “viewed as a whole.” The applicant argues that it is sufficient for the Hearings Officer to look only at the 15 conditions or parts thereof that I found had been fully complied with before expiration of the two-year initiation period based on Hearings Officer Briggs’ findings. The applicant notes these conditions represent approximately 40 percent of the 38 conditions and 100 percent of the conditions with which compliance was possible within the two-year initiation period. 12 Opponent disagrees with the applicant’s analysis for three reasons. First, she argues the “viewed as a whole” standard as a matter of law cannot be satisfied by the applicant because 12 As discussed above, opponent argued in the original declaratory ruling proceedings and at LUBA that some of these 15 conditions could not be considered fully exercised because of the impact of subsequent events opponent believes nullified that compliance. LUBA rejected that argument. Loyal Land Remand A-13-8, DR-11-8 Page 46 of 47 the majority of the conditions of approval were not exercised during the initiation period. Opponent asserts that when LUBA stated the “viewed as a whole” standard could be met even though “some” of the conditions were not exercised, it could not have intended the term “some” to mean only 40 percent of the conditions. Second, opponent argues that in any case the “viewed as a whole” standard should not be based on the number or percentage of conditions fully complied with, but rather on how significant the conditions are relative to the overall destination resort development. Opponent notes that some of the 15 conditions that were fully complied with, such as Conditions 13 and 37, require only certain plan notations and therefore “pale in significance compared to those based on completion of the FMP, the tentative plat and the site plan.” Third, opponent argues the applicant cannot rely in satisfying the “viewed as a whole” standard on its inability to fully exercise some conditions within the two-year initiation period when in opponent’s opinion that nonperformance is the applicant’s fault. The applicant responds, and the Hearings Officer agrees, that nothing in LUBA’s decision suggests its use of the word “some” means a majority of conditions must have been exercised to meet the “viewed as a whole” standard. The ordinary definition of the word “some” is “a certain unspecified number or quantity” Webster’s New World Dictionary and Thesaurus, Second Edition . In light of LUBA’s detailed instructions on remand, I find that had it intended to specify a minimum number or percent of fully complied-with conditions necessary to satisfy the “viewed as a whole” standard it would have done so. The applicant also argues there is no basis in the code or the CMP to support the notion of a hierarchy of importance in determining whether the conditions have been “substantially exercised” when “viewed as a whole.” As discussed in the findings above, the Hearings Officer has found the term “substantially exercised” means “performing or carrying out a condition of approval to a significant degree but not completely” (emphasis added.) That interpretation was not challenged on appeal. I find it is as appropriate to apply that interpretation to the CMP conditions viewed as a whole as it is to apply it to individual conditions. In other words, I find the appropriate analysis under the “viewed as a whole” approach requires me to determine whether the destination resort approval conditions as a whole have been exercised to a significant degree, and that determination necessarily requires an evaluation of the significance of each condition relative to the overall development. The Hearings Officer agrees with opponent that not all of the 15 conditions of approval and portions thereof that were fully complied with during the two-year CMP initiation period are significant in relation to the overall destination resort development. I find that seven of these conditions or portions thereof (Conditions 9, 13, 14A, 14B, 22, 36 and 37) require only notations on the FMP, revisions to and filing of CC&Rs, modification of a density chart, and coordination with the Sheriff. In contrast, I find the other eight conditions (3, 8, 10, 11, 15, 19. 24, and 30) are relatively more significant because they require more substantive action to develop the resort – i.e., obtaining right-of-way, water rights, state permits and approvals, well agreements, and fire district annexation, as well as submitting and obtaining county approval of detailed and complex plans for traffic circulation and fire protection. For the foregoing reasons, the Hearings Officer finds I cannot conclude the CMP conditions of approval were “substantially exercised” – i.e., exercised to a significant degree – when “viewed as whole” based solely on an evaluation of the 15 fully complied-with conditions of approval and portions thereof . That is because only eight of those conditions required significant action by the applicant relative to the overall destination resort development. Therefore, I find that my determination of whether the 38 conditions of approval have been “substantially exercised” Loyal Land Remand A-13-8, DR-11-8 Page 47 of 47 when “viewed as a whole” must include an evaluation of all the remaining conditions of approval and portions thereof. As discussed in the findings above, I have found four additional conditions were fully complied with – Conditions 1, 14E, 23 and 32. I find these conditions also did not require significant action by the applicant. Two require new land use approvals if the approved CMP or open space are changed. The other two simply put the applicant on notice of what was not approved by the CMP. Based on the discussion above, the Hearings Officer finds a majority of the 19 conditions of approval and portions thereof with which I have found the applicant fully complied – 11 conditions or portions thereof -- did not require significant action relative to the overall destination resort development. The condition the applicant “substantially exercised” – Condition 38 – did require the applicant to take significant action consisting of submitting the wildlife mitigation plan with its application for FMP approval and demonstrating compliance with the destination resort wildlife protection provisions. The Hearings Officer finds the remaining 22 conditions of approval and portions thereof with which the applicant either failed to fully comply with or did not “substantially exercise” required the majority of significant actions necessary to develop the Thornburgh Destination Resort – i.e., securing subdivision plat and site plan approval and constructing the resort elements and amenities. For that reason, I find that when “viewed as a whole” the CMP conditions of approval have not been “substantially exercised.” Therefore I find the use permitted by the CMP approval – the Thornburgh Destination Resort -- was not initiated before the CMP approval became void. IV. DECISION: Based on the foregoing Findings of Fact and Conclusions of Law, the Hearings Officer hereby DECLARES the applicant did not initiate the Thornburgh Destination Resort approval before it became void. Dated this 17th day of March, 2014. Mailed this ___________ day of March, 2014. ____________________________ Karen H. Green, Hearings Officer THIS DECISION BECOMES FINAL TWELVE DAYS AFTER MAILING UNLESS TIMELY APPEALED BY A PARTY.