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HomeMy WebLinkAboutM BCC A141 Memorandum To: Deschutes County Board of Commissioners From: Kevin Harrison, Principal Planner Date: May 20, 2014 Re: Appeal of Hearings Officer’s decision; File no. A-14-1 The following is an outline and discussion of the key points associated with the Board’s review of the Hearings Officer’s decision on A-13-8. Nature of the Application The application under review is a declaratory ruling to determine whether the conceptual master plan (CMP) for Thornburgh Destination Resort has been “initiated”. If it has, then there is no expiration date and the permit can be used in subsequent permits to develop the resort. If the CMP has not been initiated, then the approval has expired and the resort has no land use entitlements. Background/History The CMP (County file no. CU-05-20) was approved by the Board and, after a series of appeals became final on December 9, 2009. LUBA determined that the expiration date of the approval was November 18, 2011. The applicant, Loyal Land, LLC, filed a declaratory ruling (DR-11-8) on November 1, 2011, seeking a determination from the County as to whether the CMP has been initiated. On April 12, 2012, the Hearings Officer issued a decision that the CMP had been initiated. That decision was appealed to the Land Use Board of Appeals (LUBA). LUBA remanded the County approval (LUBA No. 2012-042) on January 8, 2013, finding that the Hearings Officer inappropriately considered only “relevant” conditions of approval instead of all conditions of approval of the CMP. Loyal Land submitted a request to the County on December 23, 2013 (A-13-8) to initiate a hearing on the remanded decision. A public hearing was held on February 4, 2014, and a decision was issued on March 18, 2014, finding that the CMP had not been initiated. Loyal Land submitted an appeal of the Hearings Officer’s decision on March 31, 2014 (A-14-1); by Order No. 2014-010, the Board agreed to hear the appeal and a hearing has been scheduled for June 4, 2014. By Order No. 2014-010, the Board shall hear the appeal de novo only on the issue of whether the application complied with DCC 22.36.020(A)(3). Parties to the Proceedings Applicant /Appellant: Loyal Land, LLC, as represented by David Petersen of Tonkon Torp LLP. Opponent: Nunzie Gould, as represented by Paul Dewey. The Record The record consists of the following: The record for LUBA No. 2012-042 (DR-11-8). The record for A-13-8. All materials submitted for A-14-1. Scope and Focus of Hearing The hearing is de novo only on the issue on the issue of whether the application complied with DCC 22.36.020(A)(3). (Order No. 2014-010) DCC 22.36.020(A)(3) reads as follows: “For the purpose of DCC 22.36.020, development action under a land use approval described in DCC 22.36.010 has been ‘initiated’ if it is determined that: Where construction is not required by the approval, the conditions of a permit or approval have been substantially exercised and any failure to fully comply with the conditions is not the fault of the applicant.” In LUBA No. 2012-042, LUBA gave the following relevant instructions: County must consider whether all of the 38 conditions of approval have been ‘substantially exercised’. County can interpret this to apply to all 38 conditions individually or to the 38 conditions viewed as a whole. For those conditions that have not been substantially exercised, failure to do so is not the fault of the applicant. With respect to conditions of approval that provide ‘contingent or continuing obligations’, the County may find that any failure on the applicant’s part to comply with such conditions is not the applicant’s fault because: 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. After consideration of LUBA No. 2012-042, the Hearings Officer found that the applicant did not initiate the resort before the CMP approval became void and made the following relevant findings: Conditions of approval 3, 8, 9, 10, 11, 13, 14A, 14B, 15, 19, 22, 24, 30, 36 and 37 were found to be fully complied with in DR-11-8 and were not challenged in the appeal to LUBA and, thus, are not subject to further review. (Page 16 of Hearings Officer’s Decision on Remand) The applicant fully complied with conditions 1, 14E, 23 and 32. The applicant substantially exercised condition 38. Most of the CMP conditions of approval under consideration impose contingent obligations on the applicant that did not occur before the destination resort approval became void, and the applicant’s failure to fully comply with those contingent obligations was the applicant’s fault. The Hearings Officer describes the reasoning behind this determination on pages 27-31 of her Decision on Remand. The term “fault” is defined in the decision as “reasons for which the applicant was not responsible, including but not limited to, delay by a state or federal agency in issuing a required permit.” (Page 16 of Hearings Officer’s Decision on Remand) In summary, the applicant argues its failure to initiate the Final Master Plan (FMP) remand was due to four circumstances outside its control. BLM Approval of Wildlife Mitigation Plan. The Hearings Officer found that there was not substantial evidence in the record before her to determine that the applicant’s failure to initiate the FMP remand was due to a delay in the BLM’s approval of the wildlife mitigation plan. The Board may consider new evidence on this issue in their review. TRC’s Bankruptcy and Other Economic Considerations. The Hearings Office found there was no evidence in the record of a direct connection between the general economic downturn and Thornburgh’s financial difficulties, which clearly predated the recession. The Hearings Officer also found that TRC and the applicant were partly and perhaps primarily responsible for TRC’s inability to develop the resort within the initiation period. Opponent’s Appeals. The Hearings Officer agreed with the opponent that the opponent cannot reasonably be blamed for the applicant’s delay in initiating the FMP remand. Futility of Initiating FMP Remand. The Hearings Officer found that it would have been possible for TRC to obtain approval of the FMP and the tentative and final plats for the first two phases of the resort before November 11, 2011 (i.e., before the CMP became void). ` c. While securing approval of the FMP and tentative plat for the first two phases of the resort would not have constituted full compliance with all CMP conditions, it would have been full compliance with at least 9 of the remaining CMP conditions, and could have provided the foundation for a finding that the CMP conditions of approval, when viewed as a whole, were substantially exercised. The Hearings Officer lacked authority to consider whether the applicant substantially exercised most of the conditions with which the applicant failed to fully comply because the noncompliance was the applicant’s fault. The term “substantially exercised”, as used in the Hearings Officer’s decision in DR-11-8, was not challenged in the appeal to LUBA and, thus, stands as described in that decision- i.e., performing or carrying out a condition of approval to a significant degree but not completely. (Page 24 of Hearings Officer’s Decision on Remand) When viewed as a whole, those conditions that were not fully complied with are more significant to the development of the resort than those conditions that were complied with. (Pages 45-47 of Hearings Officer’s Decision on Remand) Schedule/Attachments A public hearing is scheduled for June 4, 2014. A work session is scheduled for June 2, 2014. The applicant has granted an extension of the statutory review timeline to August 3, 2014. Attached are copies of: (1) the Notice of Appeal; (2) Hearings Office Decision on Remand (A-13-8/DR-11-8); (3) Applicant’s and Opponent’s written arguments and testimony on A-13-8; (4) LUBA No. 2012-042; and (5) the conditions of approval for the CMP, color-coded pursuant to the Hearings Officer’s findings as to compliance.