HomeMy WebLinkAboutA138 DR118 DecisionLoyal Land Remand
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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:
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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
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* 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
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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
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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
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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.
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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
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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.
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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.
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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
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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.”
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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
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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.
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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
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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
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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
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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.
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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.
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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
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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,
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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
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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
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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.
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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
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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.”
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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.
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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
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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.
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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”
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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.