HomeMy WebLinkAboutA141 Notice of appealTONKONTORPLLP
ATTORNEYS
David J. Petersen
Admitted to practice in Oregon and California
VIA FEDEX
RECEIVED
MAR 31 2014
Deschutes County CDD
March 28, 2014
Mr. Kevin Harrison
Deschutes County Community Development Department
117 NW Lafayette Avenue
Bend, OR 97701
Re: Loyal Land, LLC Declaratory Ruling Request
County File No. DR -11-8
Remand from Land Use Board of Appeals
Dear Mr. Harrison:
1600 Pioneer Tower
888 SW Fifth Avenue
Portland, Oregon 97204
503.221.1440
503.802.2054
Fax: 503.972.3754
david.petersen@tonkon.com
On behalf of Loyal Land, LLC, enclosed please find an application to appeal the
March 17, 2014 decision of the Hearings Officer in the above -referenced matter, to the Board of
County Commissioners. The application also includes a separate application to reopen the
record on remand pursuant to DCC 22.34.040.A.
The applicant has provided the appeal fee to Mr. DeLashmutt, who will deliver it
to your office on Monday.
Sincerely,
David J. Petersen
DJP/djp
Enclosure
cc (by e-mail, w/enc):
Mr. Terry Larsen
Mr. Kameron DeLashmutt
037117/00001/5414921v1
Community Development Department
Planning Division Building Safety Division Environmental Soils Division
P,O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
APPEAL APPLICATION
FEE:
EVERY NOTICE OF APPEAL SHALL INCLUDE:
1. A statement describing the specific reasons for the appeal.
2. If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the
reasons the Board should review the lower decision.
3. If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de novo
review by the Board, stating the reasons the Board should provide the de novo review as provided in Section 22.32.027 of
Title 22.
4. If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall
also be provided.
It is the responsibility of the appellant to complete a Notice of Appeal as set forth in Chapter 22.32 of the County Code.
The Notice of Appeal on the reverse side of this form must include the items listed above. Failure to complete all- of
the above may render an appeal invalid. Any additional comments should be included on the Notice of Appeal.
Staff cannot advise a potential appellant as to whether the appellant is eligible to file an appeal (DCC Section
22.32.010) or whether an appeal is valid. Appellants should seek their own legal advice concerning those issues.
Appellant's Name (print): Loyal Land, LLC, c/o David J. Petersen, Authorized Agent Phone: (503) 802-2054
Mailing Address: Tonkon Torp LLP, 888 SW Fifth Avenue, Suite 1600 City/State/Zip: Portland, OR 97204
Land Use Application Being Appealed: A-13-8, DR -11-8 — Decision of Hearings Officer March 17, 2014
Property Description: Township 15 Range 12 Section various Tax Lot 5000, 5001, 5002, 7700, 7701, 7800, 7801, 7900,
8000
Appellant's Signature:
EXCEPT AS PROVIDED IN SECTION 22.32.024, APPELLANT SHALL PROVIDE A COMPLETE
TRANSCRIPT OF ANY HEARING APPEALED, FROM RECORDED MAGNETIC TAPES PROVIDED BY THE
PLANNING DIVISION UPON REQUEST (THERE IS A $5.00 FEE FOR EACH MAGNETIC TAPE RECORD).
APPELLANT SHALL SUBMIT THE TRANSCRIPT TO THE PLANNING DIVISION NO LATER THAN THE
CLOSE OF THE DAY FIVE (5) DAYS PRIOR TO THE DATE SET FOR THE DE NOVO HEARING OR, FOR
ON -THE -RECORD APPEALS, THE DATE SET FOR RECEIPT OF WRITTEN RECORDS.
(over)
NOTICE OF APPEAL
Pursuant to DCC Chapter 22.32, applicant Loyal Land, LLC appeals the March 17, 2014 decision of the
County Hearings Officer determining that the Conceptual Master Plan (CMP) for the Thornburgh Destination
Resort has not been initiated under DCC 22.36.020. The applicant was a party to the proceedings below and
therefore is entitled to file this appeal pursuant to DCC 22.32.010.A.1.
The CMP was approved on April 15, 2008. On April 21, 2008, the applicant's predecessor Thornburgh
Resort Company (TRC) filed for approval of a Final Master Plan (FMP). Upon remand after a series of appeals
by Ms. Nunzie Gould, the CMP became final on December 9, 2009. It was determined in the proceedings
below that the CMP expired on November 18, 2011. Ms. Gould also appealed the FMP, which was remanded
to the County on August 17, 2010. Initiation of remand proceedings on the FMP has not yet been requested.
On November 1, 2011, the applicant filed a request pursuant to DCC 22.40.010.A.3 for a declaratory
ruling that the CMP has been initiated. The Hearings Officer ruled on April 12, 2012 that the CMP had been
initiated. Ms. Gould appealed the decision to LUBA, which (after an appeal to the Court of Appeals) remanded
the matter to the County. On January 3, 2014, the applicant initiated the remand under DCC Chapter 22.34,
leading to the decision that is the subject of this appeal.
This application also constitutes a separate request to reopen the record under DCC 22.34.040.A.
I. Appeal Pursuant to DCC Chapter 22.32
The information required by this Appeal Application and DCC Chapter 22.32 is as follows:
A statement describing the specific reasons for the appeal.
1. Overly Narrow Scope of Remand. The Hearings Officer erred in concluding that the scope of remand
from LUBA was limited to whether or not the CMP had been initiated under DCC 22.36.020.A.3, thereby
erroneously refusing to consider if the CMP had been initiated under DCC 22.35.020.A.1 or A.2.
2. Failure to Find Initiation Pursuant to DCC 22.36.010.A.1 and A.2. The Hearings Officer erred in
failing to find that the CMP has been initiated under DCC 22.36.020.A.1 and/or DCC 22.36.020.A.2. As noted
above, she erroneously refused to consider 22.36.020.A.1 and/or DCC 22.36.020.A.2 at all.
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3. Refusal to Consider Admissible Evidence. The Hearings Officer erred in refusing to consider new
evidence submitted by the applicant during the course of the proceedings below. That evidence and testimony
was admissible before the Hearings Officer under DCC 22.34.040.0 as "additional testimony required to
comply with the remand." Had that evidence been properly admitted, it would have shown that the CMP has
been initiated under any or all of DCC 22.36.020.A.1, A.2 or A.3. Alternatively, even if the Hearings Officer
did not have the authority to admit new evidence, the Board can and should admit and consider the new
evidence now, either as part of de novo review under DCC 22.32.027 (see below), or pursuant to its separate
authority under DCC 22.34.040.A to "reopen the record in instances in which it deems it to be appropriate" (see
separate application to reopen the record, below).
4. Erroneous Findings as to the Applicant's Fault. The Hearings Officer erred in concluding that, for
purposes of DCC 22.36.020.A.3, the applicant was at fault for failure to fully comply with 22 conditions of
approval of the CMP. Without limiting the generality of the foregoing, in reaching this erroneous conclusion
the Hearings Officer made the following specific errors:
A. She effectively rewrote several CMP conditions of approval that are entirely prohibitive
in nature (nos. 16, 18, 20, 34) to instead impose affirmative obligations subject to contingencies not supported
by the text of the conditions, then made incorrect findings that the applicant was at fault for the non-occurrence
of the non-existent contingencies.
B. She erroneously held that when a condition of approval imposes a contingent obligation,
and the contingency has not yet occurred, the applicant must not be at fault for the non-occurrence of the
contingency. There is no support for this requirement in the language of DCC 22.36.020.A.3, and it is contrary
to LUBA's instructions on remand. Her error also effectively rewrites both DCC Chapter 18.133 regarding
destination resorts, and the Thornburgh CMP specifically.
Under her interpretation, any time a condition of approval to a destination resort CMP requires
further land use approvals before further action can be taken (i.e. issuance of a FMP, tentative plat or site plan
approval), those approvals must be obtained and the action taken in two years unless the developer can show
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that failure to obtain all subsequent approvals within two years was not its fault.' This would be required even
if a longer development timeline had been expressly approved in the CMP. Specific to the Thornburgh CMP,
her interpretation effectively required the applicant to show an absence of fault in not obtaining a final FMP and
other approvals within two years of issuance of the CMP (tolled for CMP appeals but not for any other appeals)
and building the project, notwithstanding the approved ten to twelve-year phasing plan (as required by DCC
18.113.050.B.8) and condition #1 specifically prohibiting changes to the approved plan. This completely
undoes the three-step destination resort approval process anticipated by, and adopted by, the Board in enacting
DCC Chapter 18.113.
C. Alternatively, even if DCC 22.36.020.A.3 requires that the applicant not be at fault for
the non-occurrence of a contingency, her findings that the applicant was at fault for the non-occurrence of the
relevant contingencies here are not supported by substantial evidence in the record, or alternatively go against
the weight of the evidence. As to all conditions for which the Hearings Officer found a contingency, the
specific contingency that did not occur was the issuance of a final FMP or some later land use approval
dependent upon a final FMP. However, the evidence in the record (and the evidence that should have been, but
was not, admitted to the record (see assignment of error #3 above)) compels the following findings contrary to
the Hearings Officer's decision:
(1) TRC was prevented from filing for remand of the FMP until at least February 23,
2011 because the BLM had not yet agreed to allow TRC to complete wildlife mitigation on BLM land in
BLM's Cline Buttes Recreation Area Plan, as required by the FMP remand.
(2) The applicant and TRC were not at fault for pursuing remand of the FMP because
of the intervening economic calamity that struck both the local and global economies, commonly known
as the "Great Recession." Because of this unprecedented downturn resulting from causes far outside the
' The two year period would be tolled for any appeals of the CMP, but not for any appeals of any subsequent approvals. Accordingly,
footnote 11 of the Hearings Officer's decision is true but irrelevant because the expiration clock for the CMP would continue to tick
while the applicant is prevented from proceeding due to appeals of subsequent approvals.
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control of the applicant and TRC, sources of capital to finance further project development vanished and
the market for destination resort units temporarily evaporated.
In making erroneous findings on this issue, the Hearings Officer: (i) inexplicably ignored
substantial evidence of a causal link between the Great Recession and the resulting delays for the
project; (ii) refused to take notice of universally known facts regarding the timing, scope and impact of
the recession; and (iii) made several specific factual findings that are not supported by the record and are
flatly incorrect, including erroneous findings that Jeff Parker has an interest in the applicant Loyal Land
LLC and that financial difficulties of the prior owner could have possibly contributed to lost land value
(land value is independent of the financial wherewithal of its owner).
(3) The applicant was not at fault for not obtaining a final FMP and subsequent
approvals prior to any expiration of the CMP because of the multitude of appeals at every level by Ms.
Gould. The Hearings Officer concluded that Ms. Gould cannot be faulted for filing appeals. Even if
true, it does not follow that the applicant is therefore at fault for not making the project happen within
two years despite those appeals, especially since only appeals of the CMP tolled any expiration of the
CMP. All other appeals by Ms. Gould had no effect on any CMP expiration (see footnote 1 above), but
nonetheless prevented the applicant from proceeding with the project.
(4) Because of all the foregoing events, even had the applicant filed for a remand of
the FMP on the first day possible after BLM approved the wildlife mitigation sites, it was impossible to
obtain a final FMP within the nine months remaining until any expiration of the CMP, and therefore the
applicant was not at fault for failing to pursue a futile goal.
To illustrate this point, the applicant provided a hypothetical timeline showing that even
the first two phases of the resort could not be built in two years after approval of the CMP, even if there
were no appeals. Despite the applicant's express explanation that the timeline was not realistic and was
instead intended to provide an illustration of the impossibility of completing any destination resort in
two years, the Hearings Officer took the timeline literally. In doing so, she selectively found that some
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assumptions in the applicant's timeline overstated the required time to complete certain steps,2 but
ignored other completely unrealistic and expressly -stated assumptions that artificially shortened the
timeline for purposes of illustration. For example, the timeline assumed that all applications were filed
on the first day possible, that no application was ever deemed incomplete, that construction of all phases
could be completed in 30 days,3 and (most significantly) the absence of any appeals.
Her finding that the timeline was too long is absurd based on experience alone: to get the
FMP from initial application on April 21, 2008 just to a remand from LUBA on August 17, 2010 took
849 days. None of those 849 days tolled any CMP expiration, but by itself that 849 -day period is more
than the two-year window in which the Hearings Officer required the entire project to be completed.
Other evidence on the chronological timeline of this project would reveal other long delays throughout
the process, requiring several statutory deadline extensions from the applicant. Finally, the Hearings
Officer's finding that the applicant should have pursued a final FMP in the last nine months before any
expiration of the CMP also would require the applicant to violate the CMP (including specifically
condition #1 prohibiting changes to the approved plan) by ignoring the approved phasing plan requiring
development of the Thornburgh Resort over ten to twelve, not two, years.
D. She erroneously equated a lack of full compliance with a condition of approval with a
failure to fully exercise that condition, using the terms "compliance" and "exercise" (or "performance")
interchangeably. "Compliance" means "the practice of obeying a law, rule or request," so non-compliance with
the conditions would be to disobey the conditions. "Exercise" in this context means "an action that has a
particular plan, purpose or result," so a failure to fully exercise the conditions means that actions have not been
taken to achieve the result required by the conditions.4
2 She also mistook the period for appeal of a fmal County decision to LUBA (21 days) for the period in which to appeal a Hearings
Officer decision to the Board under the DCC (12 days).
3 As just one example, Phase I of the Thornburgh Resort includes a championship golf course, community center, sales office, 300
home sites, 150 overnight lodging units, roads, trails, and all utilities including; water, sewer, power, cable, and phone to serve those
facilities. It is absurd to conclude this could actually be done in anything close to 30 days.
4 All defmitions are from the American English version of www.macmillandictionary.com as of March 26, 2014.
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Given these two different meanings, it is possible to be in full compliance with a condition of
approval without fully exercising it. As just one example, CMP condition #7 states that "[a]ll new proposed
road names must be reviewed and approved by the Property Address Coordinator prior to final plat approval."
The applicant is, and has always been, in full compliance with this condition because it has always obeyed the
condition — at no time has the applicant obtained approval of a final plat without having first obtained approval
of any road names. However, the condition has not been fully exercised because at no time has the applicant
taken action to have road names reviewed and approved. The Hearings Officer repeated this error with respect
to all of the 22 conditions of approval for which she found that the failure to fully comply is the fault of the
applicant.
E. She misinterpreted the requirement in DCC 22.36.020.A.3 that "any failure to fully
comply with the conditions is not the fault of the applicant" to mean that the applicant must not be at fault as to
all conditions. This erroneously rewrites the DCC to change the word "any" to "all." The correct interpretation
is that the test is met if any one failure to fully comply ("any failure") is not the fault of the applicant.
5. Erroneous Findings as to Substantial Exercise of the Conditions. The Hearings Officer erred in
concluding that the conditions of approval of the CMP have not been substantially exercised. Without limiting
the generality of the foregoing, in reaching this erroneous conclusion the Hearings Officer made the following
specific errors:
A. She erroneously held that preliminary steps towards full performance of a condition
cannot constitute substantial exercise of the condition, thereby eliminating any meaning for the word
"substantial."
B. She erroneously held, with no support in the DCC, that certain individual conditions of
approval are given more weight than others in determining whether or not the conditions of approval as a whole
have been substantially exercised.
C. Her holding that substantial exercise of the conditions of approval as a whole had not
occurred is not supported by substantial evidence, or alternatively goes against the weight of the evidence. The
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evidence is undisputed that significant progress occurred on the project, and that the applicant had performed
100% of the non -contingent conditions, prior to any CMP expiration.
6. Application of a Deleted Condition. The Hearings Officer erroneously applied DCC 22.36.020.A.3 to a
condition of approval (#28) that was previously deleted on remand.
7. Violation of State and County Law. The Hearings Officer's interpretation of the two-year life of a CMP
approval under DCC 22.36.010.B.1 violates ORS 215.435(2)(a) by requiring the applicant to pursue remand of
the FMP within a specific time frame, when the statute gives the applicant full control over the timing of the
remand. It also violates DCC 18.113.030 by compelling the applicant to achieve uses on the property within
two years that require a final, approved FMP, notwithstanding the applicant's full control over the FMP remand
process.
If the Board of County Commissioners is the Hearings Body, a request for review by the Board stating the
reasons the Board should review the lower decision.
The Board should review the Hearings Officer decision because the decision effectively rewrites several
chapters of the DCC, including the chapters related to destination resorts (18.113), requests for declaratory
rulings (22.36 and 22.40) and proceedings on remand from LUBA (22.34). Rewriting the DCC is outside the
scope of the Hearings Officer's authority; it is a task reserved exclusively to the Board. ORS 174.010. If left to
stand, the Hearings Officer decision would effectively make it impossible to develop not only any destination
resorts, but also any other complex, multi -phase projects in Deschutes County under the existing DCC (whether
commercial, residential or industrial). This would have enormous financial, land use planning and other
implications for the County. As explained in greater detail below regarding de novo review, crucial issues of
County policy are presented by this decision, which are more appropriately decided by the elected Board and
not an appointed Hearings Officer.
The Board also should review the decision because of the inherent injustice in the Hearings Officer's
decision to the applicant. The applicant and TRC have spent nearly $7 million to satisfy the CMP conditions (a
figure that does not include substantial "soft" costs like attorney fees), and have proceeded at breakneck speed
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and with unwavering commitment to the project over nine years despite bankruptcy, an unprecedented
economic calamity and a well -funded opponent that has appealed every part of the project, no matter how small,
at every opportunity. Under these circumstances, to hold that the applicant still failed to move fast enough, and
is at fault for failing to achieve impossible results in an unrealistic time frame, does a grave injustice to the
applicant. It also denies the community the potential benefits of the proposed project, and it creates
unnecessary uncertainty in the approval process for future complex, multi -phase projects like destination resorts
in Deschutes County. It would also give any opponent effective veto power over any complex development
proposal in the County.
If the Board of County Commissioners is the Hearings Body and de novo review is desired, a request for de
novo review by the Board, stating the reasons the Board should provide the de novo review as provided in
Section 22.32.027 of Title 22.
The applicant requests de novo review. All of the relevant factors listed in DCC 22.32.027.B.2 counsel
in favor of de novo review.
DCC 22.32.027. B. 2. a: This factor does not apply, as provided in the sentence following DCC
22.32.027.B.2.d. Because this is a remand from LUBA, the applicable time limit is 90 days for the County to
reach a decision rather than 150 days. However, the applicant has extended the 90 -day time limit for an
additional 90 days pursuant to ORS 215.435(2)(b).
DCC 22.32.027.B.2.b: This factor does not apply. According to County staff, the recording of
the February 4, 2014 hearing before the Hearings Officer is available, and the applicant intends to provide a
transcript in accordance with DCC 22.32.024.
DCC 22.32.027. B. 2. c: The substantial rights of the applicant would be significantly prejudiced if
de novo review was not granted. Many of the errors made by the Hearings Officer are matters of first
impression addressing the interplay of complicated County code provisions.
substantial prejudice if these code interpretation decisions are given deference.
The applicant will suffer
Instead, the Board should
evaluate and consider those interpretations with a critical eye as permitted under the de novo standard of review,
especially since the Board enacted the code and is in the best position to know what was intended.
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Also, one of the crucial errors by the Hearings Officer was the failure to consider admissible evidence
relevant to the issues presented on remand. To the extent de novo review is required for the review of new or
improperly excluded evidence pursuant to DCC Chapter 22.32,5 the Hearings Officer's error will be perpetuated
to the significant prejudice of the applicant's right to full and fair consideration of its application if de novo
review is not granted. Conversely, no prejudice will result to the opponent by de novo review since she already
had a full and fair opportunity to build her record before the Hearings Officer as to why the proposed new
evidence is not relevant or persuasive, and will have that opportunity again upon de novo review by the Board.
DCC 22.32.027.8.2. d:• De novo review is appropriate here because of the substantial policy issues
implicated by this appeal and the Hearings Officer's decision. As noted throughout this application, the
Hearings Officer decision effectively rewrites both the DCC provisions for approval of destination resorts
generally and the requirements of the Thornburgh Resort CMP specifically. Both of these actions are the
exclusive prerogative of the Board.
With respect to the DCC generally, the Hearings Officer decision at its core prohibits the County from
imposing any condition of approval on a destination resort that cannot be fully exercised within two years of
CMP approval (allowing for any CMP appeals). This prohibition extends to almost every condition of approval
commonly used for destination resorts, which almost always describe future action that is dependent on further
land use approvals such as a FMP, site plan review, tentative or final plat. This prohibition would apply
notwithstanding the fact that conditions written this way are expressly consistent with the three-step destination
resort process adopted by the Board in DCC Chapter 18.113, no doubt after extensive deliberations and public
testimony. The decision also effectively takes away the power of the County to expressly impose a longer
phasing plan for any development, as it has done for the Thornburgh Resort and no doubt for many other
complex projects.
Under this decision, if the County realistically expects any approved project to actually be built, the
conditions of approval for that project must be limited to only those conditions that can be completed (including
both subsequent approvals and actual performance of the condition) within two years. This effectively forces
5 Independent grounds exist to reopen the record under DCC 22.34.040.A (see separate application, below).
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the County to choose between no actual project development in the County, or abandonment of meaningful
management of complex projects and effective mitigation of impacts. And, it gives effective veto power over
any complex project to any opponent, because any appeal will as a matter of course cause the two-year period to
be exceeded and not all appeals will stay the expiration period.
With respect to the Thornburgh Resort CMP specifically, the Hearings Officer decision rewrites several
conditions to impose affirmative obligations subject to contingencies that do not exist in the language of the
conditions. It retroactively establishes a Catch-22 for the applicant where compliance with the requirements of
the DCC (as interpreted by the Hearings Officer) would have required the applicant to violate the phasing plan
expressly approved as part of the CMP and condition of approval #1 prohibiting changes to the approved plan.
It also creates an absurdity and works a tremendous injustice by interpreting the CMP to establish conditions of
approval that were impossible to meet at the outset, making all of the efforts of the applicant and TRC a
complete waste of time and money.
The Hearings Officer's decision, if allowed to stand and establish precedent, will make destination
resorts a practical impossibility in Deschutes County. Eliminating the ability to develop destination resorts in
Deschutes County is a decision that should be made by the elected Board, not an appointed Hearings Officer. If
the DCC is going to be interpreted so that one part of it (the rules regarding initiation of permits) effectively
undoes another part (the three-step destination resort approval process in DCC Chapter 18.113), that is a
decision that should be made by the elected Board, not an appointed Hearings Officer. And, if an approved land
use permit such as the Thornburgh CMP is going to be retroactively rewritten to be impossible to perform at the
outset to the extreme prejudice of the applicant, that also is a decision for the elected Board and not an
appointed Hearings Officer. The policy implications of this decision strongly merit acceptance of this appeal de
novo by the Board.
If color exhibits are submitted, black and white copies with captions or shading delineating the color areas shall
also be provided.
No color exhibits are submitted.
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II. Separate Application to Reopen the Record Under DCC 22.34.040.A.
DCC 22.34.040.A states, with respect to proceedings on remand from LUBA or the appellate courts, as
follows:
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.
The Hearings Officer considered whether or not she had the authority to consider new evidence offered
by the applicant in the proceedings below. She erroneously concluded that she did not have that authority,
which is one of the bases for appeal described above. In reaching that conclusion, the Hearings Officer found
that only the Board has the authority to reopen the record on remand (Hearings Officer Decision, p. 27.)
Reopening the record in this case is appropriate for several reasons. A correct statement of the scope of
the remand includes consideration of DCC 22.36.020.A.1 and A.2, which were not previously considered in
prior proceedings and therefore the evidentiary record in support of (or opposition to) those bases for initiation
had not been developed. This is reflected in the new evidence already proffered to (but rejected by) the
Hearings Officer, which is relevant to whether or not the CMP has been initiated under DCC 22.36.020.A.1 or
A.2, as well as to the question of the applicant's fault (or lack thereof) for failure to fully comply with the
conditions of approval under DCC 22.36.020.A.3. And, additional evidence is necessary to dispel erroneous
factual conclusions made by the Hearings Officer without substantial evidence in the record. Further, all the
reasons in support of de novo review under DCC Chapter 22.32 are equally applicable here, and are
incorporated herein as if fully set forth.
The DCC does not provide any specific process for accepting new evidence after remand pursuant to
DCC 22.34.040. Consequently, if the request to reopen the record under DCC 22.34.040.A is granted, the
applicant requests that the Board consider the evidence previously offered to the Hearings Officer and rejected,
which consists of:
• Affidavit of Bere Lindley, January 2, 2014 (submitted with letter from David Petersen,
January 2, 2014)
• Affidavit of Bere Lindley, February 10, 2014 (submitted with letter from David Petersen,
February 11, 2014)
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• E-mail from Bill Dean, BLM to Kameron DeLashmutt dated February 23, 2011 with draft
letter attached (submitted with letter from David Petersen, February 14, 2014)
Additionally, the applicant requests that the Board schedule a hearing or otherwise establish a calendar for
submission of new evidence in connection with this appeal.
037117/00001/5387437v4
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