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HomeMy WebLinkAbout2014-07-02 Business Meeting MinutesFor Recording Stamp Only Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS WEDNESDAY, JULY 2, 2014 Commissioners' Hearing Room -Administration Building -1300 NW Wall St., Bend Present were Commissioners Tammy Baney, Anthony DeBone and Alan Unger. Also present were Tom Anderson, County Administrator; Erik Kropp, Deputy County Administrator; Dave Doyle and Laurie Craghead, County Counsel; and, for a portion ofthe meeting, Nick Lelack and Kevin Harrison, Community Development; Susan Ross, Property & Facilities; andfive other citizens. Chair Baney opened the meeting at 10:00 a.m. 1. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT None was offered. 3. Before the Board was Consideration of Board Signature of Document No. 2014-386, a Change Order to Kirby Nagelhout Construction Company to Include Construction of a Parking Lot at the Public Safety Campus in Bend. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 1 of16 Susan Ross explained the item, which is not at the jail site but on the campus. It would be 39 spaces with half for the general public, and the rest with secure access. Funding will come from 9-1-1. Tom Anderson asked if there are savings since they would be using the same contractor as the Jail project. Ms. Ross said that there is a savings since the contractor is already set up there; but it would take a lot of time to go through a full bid process, which would hold up completion of the public safety complex projects. Mr. Anderson stated that 9-1-1 has anticipated this expense. Chair Baney asked why they did not plan for this earlier. Ms. Ross stated that it had been considered as part of this overall project and most contractors are far too busy. They got the final cost estimates so would not be able to have started a bid process earlier. To do otherwise would put this into next year's paving schedule. DEBONE: Move signature. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. 4. Before the Board was Deliberations on the Appeal of the Hearings Officer's Decision on Application No. A-13-8, regarding Whether the Conceptual Master Plan Approval for Thornburgh Destination Resort Has Been Initiated. Kevin Harrison provided an overview of the item, requesting direction for staff to compile a decision. He referred to the decision matrix at this time. Per the matrix, the question is whether a requirement was substantially exercised. Commissioner Unger said he supports this as a whole, as a better approach. Commissioner DeBone stated that contingent obligation was a term used as part of the package, and should not be lost in the future. Commissioner Unger stated that the destination resort approach is the CMP, FMP, then plats and permits. The Hearings Officer in her first decision said that some things have more weight in the categories. There are different degrees of development at different times. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2, 2014 Page 2 of 16 LTNGER: Move the appropriate analysis regarding the CMP would be when viewed as a whole, is substantially exercised. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Mr. Harrison stated the Hearings Officer's definition of 'substantially exercised' was not challenged by any party. He asked if the Board wanted to adopt that definition. DEBONE: Move the Board adopt the Hearings Officer's definition of 'substantially exercised'. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Mr. Harrison stated that #3 is in regard to reconciling disputes and whether the applicant is at fault. LUBA gave specific instructions on this, and the Hearings Officer followed them. The applicant and opponent disagree. He asked the Board to determine the correct usage of terms as they relate to conditions of approval. Commissioner Unger noted that they already talked about 'substantially exercised', being part of the formative process working towards compliance. Commissioner DeBone agreed. Chair Baney said she is going towards meeting an expectation. She agrees with the Hearings Officer and LUBA. Commissioner DeB one stated these are place­ holders for future actions, to not lose track. They'd be implemented in the future. Commissioner Unger added that the Hearings Officer had one decision, then they took on LUBA, he thinks the attitude means the same thing. Chair Baney said they need to be consistent with LUBA. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 3 of 16 Commissioner Unger stated he does not see this as the same thing. It is semantics. It is worded differently in different places. 'Substantial' means in the process of complying. However, 'exercise' might mean carrying out the action. He is not sure about landing on one or the other, and they are different in Code. Chair Baney said the question is if they met the criteria. It is tough figuring out how a word should be interpreted. Laurie Craghead noted that LUBA interchanged the use of 'exercise' and 'comply' relating to conditions; not necessarily relating to Code. Chair Baney said that some you could try to exercise, but might not be able to comply at that point. Commissioner Under stated he can agree with 'substantially comply'. The words are similar. Commissioner Debone added that they could adopt the Hearings Officer's and applicant's usage of that term. Commissioner Unger said the challenge is either you comply or you don't. They might be working towards compliance. They are not necessarily tied together. 'Comply' and 'complete' are similar, but it is part of a process. Mr. Harrison noted that the use of terms in this one condition of approval as they apply to the conditions of approval, need to be in the context of the LUBA decision. It is not necessary to determine the same thing in all cases. Dave Doyle stated that the Board is suggesting interpreting 'exercise' and 'comply' as interchangeable, with substantial progress. This would be in the context of the application and various conditions of approval. UNGER: Move they adopt the Hearings Officer's use of the terms 'exercise' and 'comply' to the extent these are interchangeable for this prOVIsIOn. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Mr. Harrison referred to the matrix and the two-year period. This was not appealed nor challenged. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2, 2014 Page 4 of16 DEBONE: Move that the Board finds all the evidence falls within the effective two-year period. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Mr. Harrison reviewed item #5 regarding fault. Neither party offered an alternative definition. UNGER: Move to adopt the Hearings Officer's definition of 'fault'. DEBONE: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Regarding item #6, conditions named, Mr. Harrison said that only #38 was challenged, the final master plan during the initial period. There was substantial work done on this. This can be split out from the others. DEBONE: Move to adopt the Hearings Officer's findings on all but #38. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Chair Baney read condition #38. As a contingent obligation, the FMP must include wildlife mitigation plans. Ms. Craghead said that the condition required submission and the County to hold a hearing, and both were done. Commissioner Unger verified that it was submitted, even though it was later appealed. Commissioner DeB one said it was defended on appeal. He supports this was initiated. Chair Baney added that she feels they met the initial threshold. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2, 2014 Page 5 of 16 Mr. Harrison said that the definition of substantially exercised kicks in here. It was approved by the County, but failed under review at LUBA with respect to one aspect. The Hearings Officer felt it was substantially exercised but not fully complied with. Chair Baney agrees with the Hearings Officer; they did not ask for it to be approved totally. DEBONE: Move agreement with the Hearings Officer on condition #38. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. Mr. Harrison said that #7 is the result of appeals at LUBA and the Court of Appeals .. This brings up the issue of 'fault'. The applicant has asked the Board to go with the initial Hearings Officer's decision, but her scope of review is limited by the LUBA remand order. Ms. Craghead added that the second bite of the apple could end up in repeated appeals. They could be bound by and adhere to LUBA in this case. It would not preclude if a similar situation came up with a different resort. Commissioner DeBone asked for more clarity on this point. Commissioner Unger said they created Code and a three-step process. There was not a normal flow to this one due to the numerous appeals. A prudent person would look at the flow, with one part done, and move to the next. Ms. Craghead said issue preclusion is fact-specific to this application. How it was written was not appealed. Chair Baney stated they may have done findings differently if they knew this then. She participated in the findings at the time. She is not opposed to challenging this. Ms. Craghead said they can agree with how LUBA interpreted it, but the Board can say it is not bound by it. Mr. Harrison said the first Hearings Officer's decision said the CMP was initiated, and the process for destination resort development and a review of the conditions of approval were categorized into the three steps. She said the applicant met all the conditions of approval. However, LUBA stated that the Hearings Officer erred on which were relevant and which weren't. No distinction was made when this was written. LUBA sent it back and she had to look at all 38 conditions of approval. So the Hearings Officer wrote a new decision. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 6 of16 Commissioner Unger stated they were contingent obligations at different times in the process. Mr. Harrison said the applicant argues that LUBA's decision is not binding on the Board; and that the Hearings Officer's initial decision was correct and the Board can adopt it. Chair Baney noted that Code is vague, but there are categories. She disagrees that Code has to be interpreted that way, but some do cross over. Ms. Craghead said that the Hearings Officer categorized them and gave them weight. She ignored some conditions in the first decision and thought they applied elsewhere. LUBA said they all had to be considered but could be weighted. Commissioner DeBone stated that there was a public process at the next step. He supports the County's ability to say the initial package is appropriate. Chair Baney said that she believes the Board can interpret Code differently from LUBA. Ms. Craghead sad in this case they need to look at each, then as a whole regarding the expiration of the CMP, as to whether substantially exercised or complied. Mr. Harrison referred to item #8, conditions of approval. Some were affirmed. These are colored-coded and they only need to talk about the ones in black type. The record will show no tentative or final plat and no site plan. Commissioner Unger said this is part of the final. Mr. Harrison noted that they apply for a tentative plat, get approval and do the final plat which is recorded. That is the platting process. Commissioner Unger stated that this comes after the CMP and FMP. Chair Baney said it would be a contingent obligation. Commissioner Unger said that the FMP was submitted but was appealed, which slowed down the process. It was substantially exercised since it had been submitted. You can't do much until after the appeals. Commissioner DeBone said that it is a future path. Chair Baney noted that the FMP was remanded on April 8,2010, and the wildlife notice was in 2011, but there was no extension for the appeal. There was no further action after that. Mr. Harrison explained that the County approved the FMP, it was appealed to LUBA, and the LUBA decision was appealed to the Court of Appeals. The upshot of litigation is that it was remanded to the County, and the County was to initiate review but never did. It has been sitting and waiting for action since the remand. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 7 of 16 Chair Baney said that the basis for not initiating this was due to economic factors and not being able to continue forward since then. Ms. Craghead noted that they were also waiting for the wildlife mitigation plan approval from the BLM. Chair Baney asked if there was time to move forward with a request. While the FMP was initiated, there was no action to keep it going. She asked if they should agree that the inaction was not the fault of the applicant. Ms. Craghead said that the applicant stated they did not fully comply due to circumstances outside of their control. Chair Baney stated she did not think item #2 is a tipping point. Commissioner DeBone said it was a path to take to go forward. Chair Baney stated that they can determine ifit was substantially exercised but it might be irrelevant. Mr. Harrison noted there are three concepts. The questions are, were they exercised, substantially or as a whole; and if not, was it the applicant's fault. The FMP was remanded to the County in 2011 but nothing has happened; who is to blame needs to be determined. The applicant said the BLM delayed them, and the bankruptcy, recession and appeals caused delays. The opponent has a counter argument to all of these. The Board's judgment is needed on this. Commissioner Under said the submission of the FMP as a condition was substantially exercised. Ms. Craghead responded the only issue is fault. Commissioner Unger added that he feels this was met. Ms. Craghead explained that LUBA said it was not met, and the parties agree. The issue is whose fault it IS. Commissioner DeBone stated the CMP is a concept. He asked if they are reviewing the progress of future steps. Mr. Harrison asked who is at fault for not doing more, such as the initial site plan. There was a window of one year and nine months between the remand and the expiration of the approval of the FMP. If it expired, who is at fault. Ms. Craghead said that economic conditions have not been considered in other issues in the past without an extension. Chair Baney stated that economic factors were why CDD and the Board allowed extensions on other issues during that time. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 8 of 16 She said it is all related to the FMP. Traffic and profit issues are not the issue. She agrees with page 19 of the LUBA decision, that the applicant did not exercise the extension as allowed. In the record, on July 3, 2013, the extension was withdrawn. It is difficult working through the process, but the timelines are clearly laid out. Others have moved forward on this kind of thing. She said she does not know if they followed up with the BLM, but this should have not been a hindrance. There was enough time if they were actively engaged. There are facts in the record about the economy, but they could have worked on extensions. There was no communication of such a need. She feels that it came down to financial issues even before the recession. They should have made a good faith effort to try to extend. There were other factors at play. They let up on the process. Commissioner Unger said he agrees with some of this. The CMP is a process, and he is hearing they continued to work on the FMP. It was submitted, so he wondered why this requires continued work on it. Chair Baney stated that if the FMP is a contingency, they should have kept it moving. She asked about the cost of an extension. Mr. Harrison said this is not in the record. Chair Baney noted that they should have stayed in the game, but halted activity. Ms. Craghead said that in a case where there is only one application, there is a ten-year timeline for a remand. It could sit ten years without any action. Due to LUBA, the Hearings Officer found that these are tied together, so the CMP had to be initiated and this moved up the timeline. It changed the dynamics. Commissioner DeB one feels these were contingent obligations, the future of the CMP. There was interplay, and support of the items that were debated and got tied up. He feels the market should decide what ultimately happens. Chair Baney said that unfortunately land use cases are complicated. This was the worst case scenario, with appeals, a bad economy and so on. Nothing illegal was done, but it can be expensive and time-consuming. Commissioner DeBone noted that they are talking about names of roads, rights of way and more in the CMP, but they were irrelevant at that time. They are not at fault. This is just a path to take for the next steps. They are talking about the concept package. There is a learning curve, and you take steps as required. Some of these should not have been initiated at this point. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 9 of16 Mr. Harrison stated that it was decided that they should look at all 38 conditions of approval; and if they were not exercised, who is at fault. They can consider the relative weight and timing of events. The appropriate time was the approval period for the CMP. This was somewhat flexible due to extensions. Five years exist in Code. The extensions were not resolved and expired as of November 2012. The applicant can ask the Board to review the LUBA remand. Chair Baney noted they said they had not heard back from the BLM. They could have asked for an extension. Their July 3,2013 e-mail withdrew their extension request. She wanted to know the reasons for this. Commissioner Unger said he does not want to go too far with the issue of fault. The requirement was to submit an FMP. They did this. He feels it was fulfilled. He asked whether they should have to continue with the FMP when submission was probably enough. Mr. Harrison stated that LUBA asked the County to review all 38 conditions. Some relate to fi ling plats, etc. They need to look at these and decide if they were adequate. Chair Baney said that if submittal is enough, this triggers a number of components. Stopping the CMP affects those. Commissioner Unger feels that those are contingent obligations later in the process, and that submission was enough. Chair Baney asked why they would be in there if they can't get them done yet. Mr. Harrison explained that LUBA said it may be a three-step process, but conditions of approval do not distinguish this. Fault is the key finding, applicable to all. Ms. Craghead noted that a single application has a ten-year deadline. Destination resorts are different. The FMP was to be decided within that timeframe. Commissioner Unger said they satisfied the CMP by submitting the FMP and working through it to finalize it. He asked if they were expected to have everything final in the two-year period, or just recognize all the contingent obligations. They cannot all be met at the CMP level. This is the second step of the process. He feels the requirement for the CMP was met at the time of filing the FMP. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 10 ofl6 Ms. Craghead said that the Board had decided to not look at the original Hearings Officer's decision. Commissioner Unger stated they could look at them, but they would be met at a future stage. Mr. Harrison said that all roads lead to fault. Ms. Craghead noted that they did not continue on with the remand without an extension. Commissioner DeBone stated that these were very bad years for the economy, plus a bankruptcy and external issues. Perhaps they felt futility of initiating it at that time. The appeal process is a part of it all. There was the BLM delay. The developer at the time was probably not sure which way to go. The CMP and FMP put them into a loop. Chair Baney asked if these reasons are good enough for inactivity. Commissioner Unger said that they should not have had to do this; submittal of the FMP was enough. Chair Baney stated that the FMP expires in ten years. The CMP had two. This was a condition. Commissioner Unger stated that the CMP gives you two years to firm up the concept. They submitted the FMP. The CMP was initiated and the FMP is the document you are working on, and should have more time for the whole. Some would be done early and others later. Chair Baney asked why there would then be a deadline for the CMP. Commissioner Unger stated they had moved forward and the first step was fulfilled. Chair Baney asked about support for the first Hearings Officer's decision. Commissioner Unger replied that LUBA did not want any conditions ignored. But some are obviously contingent obligations. Mr. Harrison said that there were additional prerequisite approvals. It has to do with fault. Commissioner Unger stated that the BLM approval was a condition of the FMP, and is still a work in progress due to appeals. It is impossible to get an FMP approval within the CMP time period. Commissioner DeB one agreed that the CMP is a start. The land use process is in place and things get locked down as they go. The question is whether it can get back on track. Chair Baney asked what common sense would lead you to. Halt and wait, and apply for extensions as a placeholder. She feels there was no good faith effort. They also might have figured it was dead. Commissioner Unger said that a two-year deadline for the CMP seems appropriate, but the FMP should not have to be totally completed as a condition. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 11 of16 Mr. Harrison stated that #5, road improvements, would mean they have to have an FMP and approval of a tentative plat for a subdivision. LUBA said these had to be obtained unless the applicant was not at fault. Commissioner Unger said that these are contingent obligations at plat approval, at a future time. The issue is they just can't be ignored. Ms. Craghead said that LUBA waned them all up front. Commissioner Unger replied that LUBA is saying they can't be ignored. He agrees with the first Hearings Officer's decision. Ms. Craghead noted that the Board can disagree with LUBA. Chair Baney said that this is not a new process. She asked if this would leave the County in harm's way. Ms. Craghead stated that they have never extended a CMP. All of these were on final improvements. Commissioner Unger noted that they have to comply on all at some point. The CMP was initiated by submitting the FMP and acknowledging all the other obligations. Ms. Craghead said they could drag this out if they talk about fault. Commissioner DeBone noted that the market will be the driver. Chair Baney still feels they should have applied for extensions. Commissioner Unger emphasized, so what if they stopped. It had already been initiated. The FMP has a different timeframe, or should. He feels LUBA simply wanted the issues addressed during the process. Mr. Harrison said that LUBA indicated it all had to be addressed at the FMP level, and has to do with fault. The Board took a ten-minute break at 12:20 p.m. Ms. Craghead asked if the Board wanted to continue at this time or wait until next week. Chair Baney wanted to proceed. Ms. Craghead said the question is whether the CMP had been initiated. They need to decide fault, and then place weight on the conditions; unless the Board decides to go back to the original Hearings Officer's decision. All were addressed at LUBA, but LUBA said it wasn't enough. Mr. Doyle indicated that they need to determine fault on each, and whether the condition was met, substantially exercised or not. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 12 ofl6 Regarding item #2, Commissioner Unger said it would come later. They are not at fault since it can't yet be met. Ms. Craghead said it would be at tentative plat approval. Mr. Harrison noted CMP approval would not have expired for this. Chair Baney feels this is their fault for not moving towards it. Commissioner DeB one said there were good reasons for this. It was not met or exercised, not the fault of the applicant, and would be exercised later. UNGER: Move that this was not met. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. UNGER: Move that this was not substantially exercised. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes yes. Ms. Craghead noted that Code changed during this process. They had ten years to act, but Code now says they have to act within a year. This is the non­ conforming use Code section. The FMP is on remand. Chair Baney feels they should have kept working at it. There should have been more than a submittal. Mr. Harrison said that the issue is, if conditions were not met, whether they are at fault. Ms. Craghead stated that the declaratory ruling was applied for before the deadline. Commissioner Unger feels filing was enough, so therefore fault is irrelevant. UNGER: Move that the applicant was not at fault for condition #2. DEBONE: Second. VOTE: UNGER: Yes. DEBONE: Yes. BANEY: Chair votes no. (Split vote.) Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 13 of 16 Regarding item #4, secondary egress improvements, Commissioner Unger feels this is a contingent obligation. Mr. Harrison noted that in the Hearings Officer's decision on page 33, three roads were to be constructed. The rights of way were obtained, they got permits, and built the north access road. Commissioner Unger asked how they would know if it is substantially exercised. DEBONE: Move that this has not been met. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that it was substantially exercised. UNGER: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. UNGER: Move that the applicant is not at fault for condition #4, as it is a contingent obligation that will be complied with later outside of the CMP. DEBONE: Second. VOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) Regarding item #5, road improvements as approved by the Road Department, Mr. Harrison said that tentative plan approval is needed. Chair Baney noted that Code is not clear on this. DEBONE: Move that this has not been met. UNGER: Second. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2, 2014 Page 14 of 16 YOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that it was not substantially exercised, as it is within the development at some point. UNGER: Second. YOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes yes. DEBONE: Move that this is not the fault of the applicant, since it is a contingent condition. UNGER: Second. YOTE: DEBONE: Yes. UNGER: Yes. BANEY: Chair votes no. (Split vote.) Ms. Craghead noted that there was no opposition as to whether the rest had been met or substantially exercised. Commissioner Unger said he did not want to rush through this. He wanted to speak with staff for clarification. Ms. Craghead said that he can talk with staff, but it has to be in the record. Due to the late hour, the deliberations were continued to 10:00 a.m. at the Monday, July 7, 2014 Board business meeting. 5. ADDITIONS TO THE AGENDA None were offired. Being no other items brought before the Board, the meeting adjourned at 1:15 p.m. Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 15 of16 I DATED this fpv!J-Dayof ~t 2014 for the Deschutes County Board of Commissioners.' Ta~ Anthony DeB one, Vice Chair ATTEST: Alan Unger, Commissioner ~~ Recording Secretary Minutes of Board of Commissioners' Business Meeting Wednesday, July 2,2014 Page 16 of 16 LOYAL LAND DECISION MATRIX The critical questions in reviewing the Loyal Land application are : "Have the conditions of the permit or approval for the Conceptual Master Plan (CMP) for Thornburgh Destination Resort been substantially exercised and is any failure to fully comply with the conditions the fault of the applicant." (DCC 22.36 .020(A)(3)). If the application meets these criteria , then the CMP has been "initiated" and there is no expiration date for that approval . If the CMP has not been initiated , then the approval has expired and the resort has no land use entitlements . I. Isslle Determine whether each of the 38 conditions of approval mllst be "substantially exercised" or mllst the 38 conditions of approval, when viewed as a whole, have been "sllbstantially exercised"? Board Options The Board must choose the appropriate method of analysis. Information in Reco rd In LUBA No . 2012-042, LUBA found that the County had the option to determine the correct approach. The Hearings Officer made findings on DCe 2236.020(A)(3) based on the conditions viewed as a whole. The parties did not contest that point. Staff C omment Sample motion for BOCe: "Move that the BOCC finds that the appropriate analysis is whether the conditions of approval contained in the CMF, when viewed as a wbole, have been substantially exercised." 2. Define the tenn "substantially exercised." a. b. Adopt Hearings Onker's definition. Adopt other definition . The Hearings Officer defined "substantially exercised" to mean "performing or carrying out a condition of apprQval to a signifjcanl !:!s;gree but nol !Eompletel:i ." This definition was not challenged by any pany and was not disturbed by LUBA. Sample motion for BOee: "Move that the BOCC adopt the Hearings Officer's definition of 'substantially exercised.'n 3. Reconcile dispute regardinl the meaDinc of the words "esen:ae" and "comply" In DeC 22.36.020(A)(J): 'Where construction is not required by the • pprova~ the conditions of. permit or approval have been su bstantially exercised lind any failure to fully comply wi.h the conditions is no. the fanlt of the applicant. ' a. Adopt Hearings Officer's definition. b . Adopt Opponent's definition. In LUBA No. 2012-042. LUBA gave the County the following instructions: "On remand ... 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 full:i exercise the condition, the applicant is not at fault" (LUBA No. 2-12-042 ; p.20) In other words, LUBA viewed "exercise" and "comply" in the contex t of the code to mean the same th ing The Hearings Officer followed those instructions. (HO decision; p. 14) The Appl icant argues that "exercise" and "comply" have different meanings in the context of the code. Exercise requires an act; comply means to obey . Therefore, the Applicant can be in full compliance even ifno action has taken place with respect to a condition. (Applicant's June 18,2014 submittal; pages 4-5) The Opponent argues that Applicant's assertions are not consistent with the LUBA decision and, because they were not presented during the LUBA appeal, are barrcd from this proceeding. (Opponent's June 11,2014 submittal; pages 6-7) Sample motion for BOCe "Move that the BOCC adopt the Hearings Officer'siApplican"s usage of the ternls "exen:~'ie" and "comply" in OCC 22.36.020(A)(3). .. --~ -~---­-­-~ - I $.~uc Ro ard Options I n formation in Rttorll S tarr Comment 4. Determine the effective two-year approval period for the CMP. a . b. Use effective date determined by LUBA (11 / 18 /11). Use original date detennined by Hearings Officer (12171 II) In LUBA No . 2012-042, LUBA recalculated the expiration date for the CMP as November 18 , 20 II. That date was not appealed , and has not been challenged in s ubsequent proceedings . As a practical matter, the two-year period is not really at issue because the evidence relative to whether the 38 conditions of approval were substantially exercised falls within the effective two-year period identified by the Hearings Officer or LUBA. Sample motion for BOCC: "Move that the DOCC find that all of the evidence presented in this matter, relative to the conditions of approval, fall within the effective two-year period." -------------­ 2 ---------------------------------- Issue Bo ard Options Information in R eco rd S taff C omment S. Denne the term "fault." -~~--~--~-- a . Adopt Hearings Officer's definition . b. Adopt other definition. a. Adopt Hearings Officer's findings , with or without modification. Review Hearings Officer's rmdings as to 6, conditions 1,14E, 21, 12 and 18. b. Adopt other findings. The Hearings Officer defined "fault " to mean " reasons for which the applicant was not resl2Qnsible including but not limited to d e lay by a state or federal agency in iss uing a reguired penni\." Neither party offered an alternative definition The Hearings Officer found that the applicant fully complied with conditions I, 14E, 23 and 32, and substantially exercised condition 38. The parties did not challenge those findings , except with respect to condition 38 . In summary, the Hearings Officer found that the applicant did not fully comply with condition 38 because it did not obtain final FMP approval during the initiation period; it substantially exercised the condition by submitting the required Wildlife mitigation plan and defending its adequacy on appeal (HO decision; p. 43). The opponent challenges this finding because the wildlife mitigation plan was ultimately rejected by LUBA and the Court of Appeals (Opponent's June 18 submittal; p.6). Sample motion for BOCC: "Move Ihatthe DOCC adopt the Hearings Officer's definition of 'fault.'" Sample motion for BOCC : "Move that the BOCC adopt the Hearings Officer's findings as to conditions I, 14E, 21, 121and 18\." 3 -------- - - - - Information in Rtto rdIs.~ue Board O ptions S tarr C omment · a. Follow rea soning presented by Oppon ent (Opponent 's subminal dated June II , 2014). Some issues have already been decided by LUBA: Whether it is appropriate to consider compliance with all 38 conditions of approval or just those that it contends do not involve subsequent land use approvals like The Hearings Officer found that the scope of the decision on remand is limited by LUBA'sthe FMP and final plats . decision to considering whether Thornburgh Destination Resort was initiated under Section Whether the provision "any failure • 22 .36020(A)(3).to fully comply with the conditions The Applicant requests that the Board must not be the fault of the Opponent objects to information presented by the Applicant in its presentation to the Board overturn the existing Hearings Officer's applicant" applies to all of the on June 4 on the grounds that the issues have either been resolved by LUBA and the Court of decision and replace it with her original conditions of approval or only Appeals or were not raised below and , thus , not remanded . Opponent cites Beck v. City of decision , arguing that it is the better those that the Hearings Officer in Tillamook and Halley v. Umatilla COllnty (Opponent's s ubmittal dated June 11 , 2014 ; pages interpretation of the code, as it pertains to the her first decision found relevant. 3-8). Objections include: destination resort approval process. Some issues are barred because the y · Whethe r it is appropriate to consider compliance with all 38 conditions of approval orwere not raised in the prior case : just those that do not involve subsequent land use approvals The Opponent objects, asserting that the · Applicant 's argument that · Whether the provision "failure to full y compl y with the conditions must not be the LUBA lind Court of Appeals decisions "exercise" does not mean fault of th e applicant" applies to all of the conditions of approval or only those that effectively circumscribe the issues on remand "compliance" was not raised before the Hearings Officer in her first decision found relevant and the scope of the Board's review. the Hearings Officer, or in · Applicant 's argument that "exercise" does not mean "compliance" subsequent appeals to LUBA or7, · Applicant's argument for an exception to the Beck rule prohibiting raising new issues The issue before the Board is to determine the Court of Appeals. effect of the LUBA and Court of Appeals Applicant rebuts Opponents' arguments in its June 18 SUbmittal, citing Gage v. City C!f decisions on the Board's scope of The Board 's ability to interpret its code POrlland, Siporen v. City ofMedford and Canfield v. Umtllilla County (Applicant's submittal review/admissible evidence. LUBA's decision, is limited by LUBA and Court of dated June 18 , 2014; pages 1-4). Arguments include: affirmed by the Court of Appeals. was that. Appeals decisions, and ORS 197 .829 does not apply to the Court of Appeals. · The Board is the final arbiter of its own code (ORS 197.829( I) for any conditions that have not been fully · Interpretation of code also limited · LUBA gives deference to the Board's interpretation of it code as long as that complied with during the two-year approval here because LUBA determined interpretation is plausible period, tbe County can conclude tbat tbe that the operative language to be · The Court of Appeals shall affirm LUBA unless it found the order to be unlawful in CMP approval was initiated only if it finds, applied is that which is found in the substance or procedure (ORS \97 .850(9)(a» based on substantial evidence, tbat for such conditions of approval for the conditions, the "failure to comply with the ,Applicant objects to Opponent's testimony regarding comments made by former County conditions is not the fault of the applicant.fl CMP . Co mmissioners on the original CMP decision on the basis of impermissibl e anempt to re-I litigate that approval. Those comments were critical of the application materials and questioned the completeness of the application . Applicant cites to Lord v. City ofOregon City I (Applicant's submittal dated June 18 , 2014 ; p.7). b. Follow reasoning presented by IApplicant (Applicant's submittal dated June 18 , 2014). The Board is the final I arbiter of what its own code means : · ORS 197 .829(1) provides that LUBA shall affirm a local government 's interpretation of its own land use regulations, with some exceptions. The Board has not determined what DCC - 4 lssue c. Board O ptions 22J6.020(A)(3 ) means . · The Coun of Appeals was required to affinn LUBA unless it found the order to be unlawful in substance or procedure (ORS I 97.850(9)(a)). · The Board is free to interpret DCC 22J6020(A )(3) as long as its interpretation is pl ausible . Other . Inrormation in Record S taff C o mment 8. Determine, as to each remaining condition of approval. whether it has been: 0 E-u rcised . Substantially Exercised 0 Imot nercised or substantially exercised, whether the Applicant is Ht fa ull. In LUBA No . 2012-042 , LUBA gave the The Hearings Officer found that most of the CMP conditions of approval under consideration following relevant instructions : Impose contmgent obligations o.n the Applicant that did not occur before the CMP approval became v~ld , and the Applicant s fadure to fully comply with contingent obligations was the · County must consider whether all Applicant s fault . She found t~at she lacked authority to consider whether the Applicant of the 38 conditions of approval substantially exerCISed most of the condlllons WIth which the Applicant failed to fully comply have been 'substantially exercised.' because noncompliance was the Applicant's fault (HO decision ; pages 27-31). 0 For those conditions that have not The Applicant assens that all conditions of approval have been fully complied with but if the been substantially exercised, fail ure Board finds otherwise then any failure to fully comply with these contingent conditions of to do so is not the fault of the approval was not the Applicant 's fault because : applicant. 0 Delay in the BLM approval of the wildlife mitigation plan . 0 TRC's bankruptcy proceedings and other economic considerations. • With respect to conditions of · Opponent's appeals . approvaf that provide 'contingent or 0 Futility of initiating FMP remand. (Applicant's Power Point presentation June 4 continuing obligations', the County 2014) , , may find that any failure on the Applicant 's part to comply with The Opponent assens that 22 conditions of approval have not been substantially exercised or such conditions is not the fault of fully compiled WIth and faIlure to fully comply with these contingent conditions of approval the Ap plicant because the was the Applicant's fault because: contingency that would tri ggcl r · Miti gation measures on BLM land could have been resolved prior to submitting the obi igntions under the condition CMPand/or resolved between February 2011 and December 2012 (Opponent's does not and may never exist or the submntal dated June 11 , 2014 ; pages 9·10). Applicant's failure to obtain • The financial difficulties experienced by TRC predate the bankruptcy proceedings and additional prerequisite land use the eflects of the recession . approvals is not the Applicant's • Opponent's appeals tolled the expiration date of the approval and Opponent cannot be fault. blamed for Applicant's delay in initiating the FMP remand . ~PDlicant had one year and nine months to initiate FMP remand and failure to do so Refer to attachment showing all 38 conditions of approval , color coded pursuant to Hearings Officer's decision . I Iss ue 8 oa n! Options Infflrmation in Record S taff C omment was the Applicant's fault. a . The conditions of approval, when viewed as a whole, have been The Hearings Officer found that 22 conditions and portions thereof were not fully complied with and that suc h failure was the Applicant's fault. The Hearings Officer found that the appropriate analysis under the "viewed as a whole" approach requires the County to detemline whether the destination resort approval conditions as a whole have been exercised to a si gnificant degree and that determination necessarily requires an evaluation of the significance of conditions relative to the overall development. The Hearings Officer found that 7 of the 15 conditions of approval that were full y compl ied with (Conditions 9, 13 , 14A, 14B, 22 , 36 and 37) require only notations on the FMP , revisions to and fiI ing of CC&Rs, modification of a density chart and coordination with the Sherilr In contrast, s he founll the other 8 conditions (3 , 8, 10, II , 15 , 19 , 24 and 30) are rdatlvely more sigmfica nt because they require more substantive action to develop the resort (obtaining right-of-way, water rights, state permits and approvals, well agreements, fire district annexation, submining and obtaining county approval of detailed and complex plans for traffic circulation and fire protection). Ult imately, the Hearings Onicer found that she cannot conclude the CMP conditions of approval have been substantially exercised because only 8 of these 15 conditions fully complied with required significant action by the applicant relative to the overall destination resort development. The Board can give more or less weight to any particular condition; the Board needs to make this determination by considering all approval conditions re lative to each g, Determine whether the conditions of a pproval. when viewed as a whole. have been 51Ibl1ta nllally exercised, b. substantially exercised . The conditions of approval , when viewed as a whole, have not been substantially exercised . The Hearings Officer also found that 4 additional conditions of approval had been fully complied with (Conditions I , 14E , 23 and 32). The Hearings Onicer found these conditions 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 o r what was not approved by the CMP. other and their importance to the project Sample motion for BOCe: " Move that the BOCC find that when viewed as a whole the approval The Hearings Officer found the remaining 22 conditions of approval and portions thereof with which the Applicant either lailed to full y comply or did not substantially e xercise required the majority of sign iii cant actions necessary to develop the resort-i.e., securing subdivision plat and site plan approvals and constructing the resort elements and amenities (HO decision ; pages 44-47). The Applicant argues: . Only those conditions that could be exerc ised before FMP approval or concurrently with an FMP are relevant Here, every one of those conditions has been fully exercised. If full e xercise exists , then substantial exercise also necessarily exists. • Forty of the 41 conditions have been fully exercised or are fully complied with, and condition 41 has been substantially exercised . There is no condition for which substantial exercise was pemlissible, but has not yet occurred. When the applicant has either fully or substantially exercised every condition possible. and is in full compliance with the rest, substantial exercise orthe conditions as a whole must exist. conditions in the CMP have!have not been substantially exercised." 6 ---­.­-­_ Issue -­--_._---­ Board Options Information in Record · Substantial exercise eXIsts If cvery condItIon that could have been exercised by this point in the process has been exercised. This is 20 of 41 conditions, almost 50%. · The Hearings Officer erred in giving greater weight to some conditions over others . • Finally, any failure to fully comply with those 22 remaining conditions of approval is not the Applicant's lault, as described under Issue 117 , above . (See Applicant's tinal argument dated June 25 , 2014) Sta rr C omme nt 7 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org BUSINESS MEETING AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JULY 2, 2014 Commissioners' Hearing Room -Administration Building -1300 NW Wall St., Bend 1. PLEDGE OF ALLEGIANCE 2. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Please complete a sign-up card (provided), and give the card to the Recording Secretary. Use the microphone and clearly state your name when the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject ofa public hearing will NOT be included in the official record ofthat hearing. 3. CONSIDERATION of Board Signature of Document No. 2014-386, a Change Order to Kirby Nagelhout Construction Company to Include Construction of a Parking Lot at the Public Safety Campus in Bend Susan Ross, Property & Facilities Suggestion Action: Move Board signature ofDocument No. 2014-386. 4. DELIBERATIONS on the Appeal of the Hearings Officer's Decision on Application No. A-13-8, regarding Whether the Conceptual Master Plan Approval for Thornburgh Destination Resort Has Been Initiated -Kevin Harrison, Community Development Suggestion Actions: Deliberate; provide direction to staff Board of Commissioners' Business Meeting Agenda Wednesday, July 2,2014 Page 1 of5 Monday, July 4 Most County offices will be closed to observe Independence Day Monday, July 7 10:00 a.m. Board of Commissioners' Business Meeting Wednesday, July 9 10:00 a.m. Board of Commissioners' Business Meeting 1:30p.m. Administrative Work Session could include executive session(s) Monday, July 21 10:00 a.m. Board of Commissioners' Business Meeting 1:30p.m. Administrative Work Session could include executive session(s) Tuesday, July 22 1:00 p.m. Employee Benefits Advisory Committee Meeting Wednesday, July 23 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session could include executive session(s) Thursday, July 24 9:00a.m. Performance Management & Department Update -Natural Resources Management -at Road Monday, July 28 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session -could include executive session(s) Monday, August 4 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session -could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, July 2, 2014 Page 3 of5 Tuesday, August 5 3:30 p.m. Local Public Safety Coordinating Council Meeting Wednesday, August 6 10:00 a.m. Board of Commissioners' Business Meeting 1 :30 p.m. Administrative Work Session -could include executive session(s) Thursday, August 7 9:00 a.m. Performance Management & Department Update -9-1-1 County Service District Wednesday, August 13 10:00 a.m. Board of Commissioners' Business Meeting 1 :30 p.m. Administrative Work Session -could include executive session(s) Monday, August 18 10:00 a.m. Board of Commissioners' Business Meeting 1 :30 p.m. Administrative Work Session -could include executive session(s) Wednesday, August 20 10:00 a.m. Board of Commissioners' Business Meeting 1 :30 p.m. Administrative Work Session -could include executive session(s) Monday, August 25 10:00 a.m. Board of Commissioners' Business Meeting 1 :30 p.m. Administrative Work Session -could include executive session(s) Wednesday, August 27 10:00 a.m. Board of Commissioners' Business Meeting 1 :30 p.m. Administrative Work Session -could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, July 2,2014 Page 4 of5 Thursday, August 28 9:00 a.m. Performance Management & Department Update -Sheriff's Office, Part I Tuesday, September 2 3:30 p.m. Local Public Safety Coordinating Council Meeting 5:00 p.m. County College Presentation Wednesday, September 3 10:00 a.m. Board of Commissioners' Business Meeting 1:30 p.m. Administrative Work Session -could include executive session(s) , Thursday, September 4 9:00 a.m. Performance Management & Department Update -Sheriff's Office, Part II PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS 192.660(2)(d), labor negotiations; ORS 192.660(2) (b), personnel issues; or other executive session items. Board of Commissioners' Business Meeting Agenda Wednesday, July 2,2014 Page 5 of5