HomeMy WebLinkAboutApplicant Document - Loyal Land CaseTE" ATTORNEYS
TON KON TORP LLP
David J. Petersen
Admitted to practice in Oregon and California
June 11, 2014
VIA E-MAIL (kevinh(&,co.deschutes.or.us)
Mr. Kevin Harrison
Deschutes County Community Development Department
117 NW Lafayette Avenue
Bend, OR 97701
Re: Loyal Land, LLC Appeal
County File No. A-14-1
Dear Mr. Harrison:
1600 Pioneer Tower
888 SW Fifth Avenue
Portland, Oregon 97204
503.221.1440
Direct Dial: 503.802.2054
Direct Fax: 503.972.3754
david.petersen@tonkon.com
This letter provides additional evidence and argument for the above-referenced appeal, in
accordance with the schedule set by the Board at the June 4, 2014 hearing.
History of Destination Resort Approvals in Deschutes County
Commissioner DeBone asked for information about the history of destination resort
approvals in Deschutes County. This is an insightful request, because that history demonstrates
the near impossibility of meaningful destination resort development if the Hearings Officer's
interpretation of the DCC is adopted. Please recall that under the Hearings Officer's
interpretation of DCC 22.36.020.A.3:
• the applicant must fully comply with each and every condition of the CMP within two
years of approval of the CMP (tolled by appeals of the CMP but not appeals of any other
approval such as the FMP), unless the failure to do so is not the fault of the applicant;
and
• to "fully comply" means to perform the acts required by the condition, even if there are
contingencies (such as further land use approvals) that must occur first; and therefore
• "full compliance" requires the applicant to obtain any further land use approvals (such as
a final, approved FMP and site plan or subdivision plat approval pursuant to DCC
18.113.040.B and .C), and then perform the acts required by the condition, all within the
two year period following CMP approval.
Enclosed with this letter is a table showing permit issuance milestones for five recent
destination resorts in Deschutes County under the three-step process of DCC 18.113.040. All
the data in the table was provided by the County Community Development Department. Most
Mr. Kevin Harrison
June 11, 2014
Page 2
notably, of all the land use approvals for the projects on the list, there was only one LUBA
appeal, whereas the Thornburgh project alone has seen five separate appeals to LUBA, three
appeals to the Court of Appeals, two administrative appeals and one petition for certiorari to the
Supreme Court.
This information shows that even without appeals, it is challenging to get all permits for
just the first two phases of a destination resort within two years of final approval of the CMP.
Only two of the five projects on the list met this standard. And it is important to note that this
data only reflects permitting — once the permits were issued, the conditions of approval still
needed to be performed, and under the Hearings Officer's interpretation of the DCC, that too
must occur within the two-year window unless the developer is not at fault for the delay.
Finally, the projects on this list all had phasing plans under DCC 18.113.050.B.8 for more than
two phases, and the Thornburgh project was approved for seven phases,1 but this analysis shows
compliance with the Hearings Officer's standard is difficult at best for just the first two phases.
When multiple appeals and development phasing are considered, it becomes clear that
the Hearings Officer's decision would make all destination resorts of any complexity (not just
the Thornburgh Resort) untenable. Thus, Ms. Gould's suggestion that this appeal presents issues
specific only to this project is without merit. In truth, this decision has broad policy implications
because applying the Hearings Officer's interpretation will make timely initiation of the CMP for
all but the simplest and most uncontroversial destination resorts impossible, and any opponent
willing to file a few appeals will have effective veto power over any project just by burning the
two-year window with appeals of subsequent approvals.2 To illustrate the practical significance
to the County of adopting such a policy, enclosed please find a PowerPoint presentation from
former County Commissioner Linda Swearingen to the Bend City Club on July 17, 2008
illustrating the many benefits of destination resorts to the County.
Continuous Commitment of the Developers to Project Completion
Ms. Gould's attorney argued at the hearing and in his written materials that the applicant
and its predecessor have been dilatory in pursuing this project to completion. Nothing could be
further from the truth. The two affidavits of Bere Lindley submitted to the Hearings Officer,
and the affidavit of Kameron DeLashmutt and the letter from Peter Livingston submitted prior to
the June 4 hearing, provide ample evidence showing how the prior developer's commitment,
dedication, investment and hard work to see this project to completion never wavered over many
years of appeals and despite the drastically bad economic conditions of the late 2000's. The
evidence shows that substantial financial and human resources were devoted to the project on a
relatively consistent basis throughout the entire life of this project, and which includes the time
period after the FMP was remanded to the County in August 2010. This consistent and
1 The approved phasing plan for the Thornburgh Resort is in the record at AR 371 and 393.
2 Recall that only appeals of the CMP toll the two-year window for initiation of the CMP.
Subsequent appeals (like the FMP appeals in this case) will not toll that two-year period.
cili TnquipwroRp..
Mr. Kevin Harrison
June 11, 2014
Page 3
relentless pursuit of the project is remarkable, given the drastic changes in economic conditions
throughout this period and the many external challenges the project has faced.
One of the central issues in this appeal is the question of the applicant's fault. As
Mr. Livingston suggests, fault connotes some kind of moral failing, a mistake or a responsibility
for wrongdoing. Ms. Gould argues that the prior developer was at fault for undue delay in
pursuing the project, for somehow taking too long to make things happen, for wasting time. The
evidence in the record, however, shows precisely the opposite — that the prior developer was
fully committed at all times to making things happen as fast as possible. The fact that the
applicant and its predecessor failed to achieve more progress stems entirely from factors outside
of their control — delay at the BLM, the economic crisis, the many appeals and the fact that the
DCC itself calls for a complicated and time-consuming three step approval process for
destination resorts. And even if it was possible to move the project faster, to have done so
would have been sheer folly in light of economic conditions, as shown in the report from
Peterson Economics.
Ms. Gould repeatedly alleges that the applicant tries to lay fault for the absence of more
progress at her feet, or at the County's feet. This is not true. In fact, there is no need to attribute
fault anywhere. It is possible for the applicant to not be at fault for failure to fully comply with
the conditions even in the absence of fault by any other actor. To the extent fault can be
attributed at all, it perhaps lies with administrative delay at the BLM or with global economic
actors far removed from these proceedings.
But trying to lay blame somewhere is an unnecessary diversion. The truth of the matter
is revealed from the evidence — regardless of who or what (if anyone) is at fault, the applicant
and its predecessor are plainly not at fault for the delays that have plagued this project. And
accordingly, the applicant is not at fault for failure to fully comply with any conditions of
approval of the CMP.
Requests for Extensions of the CMP
There was some confusion at the June 4 hearing about the history of requests for
extensions of the CMP. To clarify: the applicant submitted two applications to the County on
November 1, 2011 — the present application for a declaratory ruling that the CMP had been
initiated, and a request for a one-year extension of the CMP. At the time, there was no definitive
ruling on when the CMP was due to expire. In its application the applicant identified November
3, 2011 as the expiration date. The extension application (County File E-11-56) was put on hold
pending a decision on the declaratory ruling request.
On April 12, 2012, the Hearings Officer issued her first decision in the declaratory ruling
matter. In that decision on page 17, she stated that the CMP expired on December 7, 2011.
Thus, if the one-year extension request on hold was granted, the CMP would be extended to
expire December 7, 2012.
TANWN TORP
Mr. Kevin Harrison
June 11, 2014
Page 4
As Ms. Gould's appeal of the April 12, 2012 decision dragged on, the applicant
submitted an application for another one-year extension of the CMP on December 6, 2012
(County File E-12-55). This was one day prior to the expiration date that would exist if the first
one-year extension request was granted, using the expiration date determined by the Hearings
Officer. This created a situation where two one-year extension requests were pending and on
hold, waiting for final resolution of the declaratory ruling matter.
On January 8, 2013, LUBA issued its decision on Ms. Gould's appeal of the Hearings
Officer's April 12, 2012 decision. In that decision, LUBA identified the original expiration date
of the CMP as November 18, 2011, not December 7, 2011 (LUBA Decision, p. 11). As a result,
even if the first one-year extension request was granted, it would only extend the CMP to
November 18, 2012, making the applicant's second request for another extension on December
6, 2012 untimely. The applicant was informed by the County Community Development
Department that for this reason, the second application would be denied, so both applications
were withdrawn in July 2013.
Again, one of the central issues in this appeal is the question of the applicant's due
diligence and good faith in pursuing the project. There can be no doubt that the applicant acted
in good faith in seeking a second extension of the CMP in early December 2012, prior to the
expiration date on December 7, 2012 (assuming the first extension request was granted). A11
parties understood December 7 to be the relevant date based on the Hearings Officer's April 12,
2012 decision. The subsequent LUBA decision rendered the second extension request untimely
and made further extensions unavailable, but this does not equate with bad faith or dilatory
behavior on the part of the applicant. Instead, the applicant at all times acted consistent with the
facts as it understood them at the time. It cannot now be said to be at fault for failing to timely
request additional extensions of the CMP, given that the expiration date was changed
retroactively by LUBA after it was too late for the applicant to do anything about it.
Additional Evidence
Enclosed with this letter please find the following evidence relevant to this appeal:
• Destination resort permit issuance milestone table, based on data received from the
Deschutes County Community Development Department;
• Linda Swearingen PowerPoint presentation to Bend City Club dated July 17, 2008;
• E-mail dated June 4, 2014, from John Kahlie of Hickman Williams & Associates to
David Petersen;
• E-mail dated June 4, 2014 from Robert W. Bryant of ODOT to David Petersen;
• Ten photographs of constructed improvements to the intersection of Hwy. 126 and Eagle
Crest Blvd. and the completed northern access road on BLM right of way; and
• Approved Thornburgh CMP Recreation Amenities Plan.
TL TpampNTORPLLP
Mr. Kevin Harrison
June 11, 2014
Page 5
Please include this letter and its enclosures in the record. Thank you and please contact
me if you have any questions or concerns.
Sincerely,
David J. Petersen
DJP/djp
Enclosures
cc (by e-mail):Mr. Paul D. Dewey
TRIWN TORP LLP
TABLE OF RESORT APPROVAL DATES
Resort CMP
final
FMP
final
Other approvals (first two phases only):Time elapsed
between final
CMP and last
approval
LUBA appeals
Tentative Plat 1 Tentative Plat 2 Site Plan 1 Site Plan 2 Site Plan 3
Eagle
Crest 2 Oct 93 Apr 95 Dec 97 Jan 99 Nov 97 Jul 98 May 99 5 yrs 7 mos.
0
Eagle
Crest 3 May 01 Oct 01 Oct 01 Oct 01 Dec 03 n/a n/a 2 yrs 7 mos.
0
Pronghorn Jun 01 May 02 Sept 02 Apr 03 Sep 02 Nov 02 n/a 1 yr 4 mos.0
Tetherow Jan 05 Dec 05 Feb 07 Jun 07 Mar 07 Jun 07 n/a 2 yr 5 mos.1
Caldera May 05 Aug 05 Oct 05 Dec 05 Apr 06 n/a n/a 11 mos.0
LINDA SWEARINGEN POWERPOINT
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RECREATION AMENITIES PLAN
THORNBURGH RESORT
Document A-11a: RECREATION AMENITIES PLAN
The Thornburgh Recreation Amenities Plan proposes a comprehensive plan with
amenities evenly distributed within each of the proposed Villages, The Tribute and The
Pinnacle.
The Tribute
The proposed Tribute Village amenities will be accessible to the residences and guests of
The Tribute. 'The Tribute Village plan proposes the following amenities:
• Two (2) championship golf courses .
• A state of the art golf teachinWpractice area
• A community center comprising of a fitness center, swim club, a country
style/convenience store, a restaurant accessible to the general public, a small
amenity lake, a sun/view deck oriented to the amenities as well as views of the
distant mountains and sunset -
• A interconnecting hiking and biking trail system
• Three (3) vista points/viewing areas
• Golf club house with locker rooms, meeting rooms and facilities, a banquet room,
a library, a kitchen and a dining/eating area
The Pinnacle
Most of the proposed Pinnacle Village amenities will be accessible to the general public,
with some amenities provided on a fee/rental basis.
• One (1) championship/resort golf course
• Golf Clubhouse, pro shop and grill
• Practice/instruction area
• A resort hotel complex area comprising of a resort pool, a lazy river, a health and
fitness center, a spa, resort retail/shops, art gallery, restaurant(s)/bar, conference
room facilities, cultural center and amphitheater
• Tennis courts, pro shop and teaching center
• Recreation lake and stream, incorporating boating, kayaking, fishing, water
skiing, wakeboarding, and a boat club house
• A interconnecting hiking and biking trail system-
Two (2) vista points/viewing areas
All recreation/amenity improvements will be complementary with their immediate
natural environment.
A-11. a Recreation Amenities Description v2.doe
KAHLIE AND BRYANT E-MAILS
From:John Kahlie [mailto:johnk@hwa-inc.org]
Sent:Wednesday, June 04, 2014 9:27 AM
To:David Petersen
Cc:kameron@bendcable.com
Subject:Thornburgh Resort
Hi David,
In response to our conversation regarding the Thornburgh Resort development, we are providing you
with the following information.Please feel free to forward this email to Deschutes County in support of
your Application for initiation of the CMP.
Our firm, Hickman Williams & Associates, represented Thornburgh Resort Company, LLC in the
development of applications for the Conceptual Master Plan, Final Master Plan and Tentative Plans for
the Phase A development starting in the fall of 2004 and continuing well into 2008.
All work performed by Hickman, Williams & Associates on the original submitted applications was in
accordance with the requirements of Title 17 of the Deschutes County Code.Work performed by us
included; road design for both horizontal and vertical alignment, width, and cross section.All design
work, including the roads, was based on a detailed aerial topography flown to two foot contour
intervals.Additionally, a color coded “slope analysis” was produced by us and used to help insure that
no site development was proposed on slopes greater than 25%.
Please let me know if you need anything else,
John
John Kahlie, Principal
HWA Engineers ● Planners ● Surveyors
Hickman, Williams & Associates, Inc.
62930 O. B. Riley Road, Suite 100 ● Bend, OR 97701
p541.389.9351 c541.480.8680 f541.388.5416
johnk@hwa-inc.org
From:BRYANT Robert W [mailto:Robert.W.BRYANT@odot.state.or.us]
Sent:Wednesday, June 04, 2014 9:05 AM
To:David Petersen
Cc:Kameron DeLashmutt
Subject:RE: Thornburgh imitation hearing tomorrow
Kameron asked us to comment on the status of the MOU between ODOT and
Thornburg Resort dated October 10, 2005.We believe that TRC is in compliance with
the MOU.
The MOU was in effect for ten years and will expire in 2015.The MOU is intended to be
followed by a Cooperative Improvement Agreement (CIA) that will provide more detail
around Thornburg’s transportation mitigations to the state highway system which
includes a fair share contribution to the construction of an interchange at US
20/Cook/OB Riley Road and channelization improvements on OR 126 at Eagle Crest
Blvd.These improvements are not called for in the MOU until Thornburg completes its
land use process and obtains a permit from the County.
If there are any further questions regarding the status of the MOU, please contact Jim
Bryant, Senior Planner at 388-6437.
Thanks.
Bob
Bob Bryant
Region Manager
541.388.6184 (0)
541.419.9334 (c)
PHOTOS