Loading...
HomeMy WebLinkAboutLoyal Land Decision Matrix1 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. Issue Board Options Information in Record Staff Comment 1. Determine whether each of the 38 conditions of approval must be “substantially exercised” or must the 38 conditions of approval, when viewed as a whole, have been “substantially exercised”? The Board must choose the appropriate method of analysis. In LUBA No. 2012-042, LUBA found that the County had the option to determine the correct approach. The Hearings Officer made findings on DCC 22.36.020(A)(3) based on the conditions viewed as a whole. The parties did not contest that point. Sample motion for BOCC: “Move that the BOCC finds that the appropriate analysis is whether the conditions of approval contained in the CMP, when viewed as a whole, have been substantially exercised.” 2. Define the term “substantially exercised.” a. Adopt Hearings Officer’s definition. b. Adopt other definition. The Hearings Officer defined “substantially exercised” to mean “performing or carrying out a condition of approval to a significant degree but not completely.” This definition was not challenged by any party and was not disturbed by LUBA. Sample motion for BOCC: “Move that the BOCC adopt the Hearings Officer’s definition of ‘substantially exercised.’” 3. Reconcile dispute regarding the meaning of the words “exercise” and “comply” in DCC 22.36.020(A)(3): ‘Where construction is not required by the approval, the conditions of a permit or approval have been substantially exercised and any failure to fully comply with the conditions is not the fault of the applicant.’ 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 fully 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 context of the code to mean the same thing. The Hearings Officer followed those instructions. (HO decision; p. 14) The Applicant 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 if no 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 barred from this proceeding. (Opponent’s June 11, 2014 submittal; pages 6-7) Sample motion for BOCC: “Move that the BOCC adopt the Hearings Officer’s/Applicant’s usage of the terms “exercise” and “comply” in DCC 22.36.020(A)(3).” 2 Issue Board Options Information in Record Staff Comment 4. Determine the effective two-year approval period for the CMP. a. Use effective date determined by LUBA (11/18/11). b. Use original date determined by Hearings Officer (12/7/11). In LUBA No. 2012-042, LUBA recalculated the expiration date for the CMP as November 18, 2011. That date was not appealed, and has not been challenged in subsequent 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 BOCC find that all of the evidence presented in this matter, relative to the conditions of approval, fall within the effective two-year period.” 3 Issue Board Options Information in Record Staff Comment 5. Define the term “fault.” a. Adopt Hearings Officer’s definition. b. Adopt other definition. The Hearings Officer defined “fault” to mean “reasons for which the applicant was not responsible, including but not limited to, delay by a state or federal agency in issuing a required permit.” Neither party offered an alternative definition. Sample motion for BOCC: “Move that the BOCC adopt the Hearings Officer’s definition of ‘fault.’” 6. Review Hearings Officer’s findings as to conditions 1,14E, 23, 32 and 38. a. Adopt Hearings Officer’s findings, with or without modification. b. Adopt other findings. The Hearings Officer found that the applicant fully complied with conditions 1, 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 that the BOCC adopt the Hearings Officer’s findings as to conditions 1, 14E, 23, 32[and 38].” 4 Issue Board Options Information in Record Staff Comment 7. The Applicant requests that the Board overturn the existing Hearings Officer’s decision and replace it with her original decision, arguing that it is the better interpretation of the code, as it pertains to the destination resort approval process. The Opponent objects, asserting that the LUBA and Court of Appeals decisions effectively circumscribe the issues on remand and the scope of the Board’s review. The issue before the Board is to determine the effect of the LUBA and Court of Appeals decisions on the Board’s scope of review/admissible evidence. LUBA’s decision, affirmed by the Court of Appeals, was that, for any conditions that have not been fully complied with during the two-year approval period, the County can conclude that the CMP approval was initiated only if it finds, based on substantial evidence, that for such conditions, the “failure to comply with the conditions is not the fault of the applicant.” a. Follow reasoning presented by Opponent (Opponent’s submittal dated June 11, 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 FMP and final plats. Whether the provision “any failure to fully comply with the conditions must not be the fault of the applicant” applies to all of the conditions of approval or only those that the Hearings Officer in her first decision found relevant. Some issues are barred because they were not raised in the prior case: Applicant’s argument that “exercise” does not mean “compliance” was not raised before the Hearings Officer, or in subsequent appeals to LUBA or Court of Appeals. The Board’s ability to interpret its code is limited by LUBA and Court of Appeals decisions, and ORS 197.829 does not apply to the Court of Appeals. Interpretation of code also limited here because LUBA determined that the operative language to be applied is that which is found in the conditions of approval for the CMP. b. Follow reasoning presented by Applicant (Applicant’s submittal dated June 18, 2014). The Board is the final 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 The Hearings Officer found that the scope of the decision on remand is limited by LUBA’s decision to considering whether Thornburgh Destination Resort was initiated under Section 22.36.020(A)(3). Opponent objects to information presented by the Applicant in its presentation to the Board on June 4 on the grounds that the issues have either been resolved by LUBA and the Court of Appeals or were not raised below and, thus, not remanded. Opponent cites Beck v. City of Tillamook and Hatley v. Umatilla County (Opponent’s submittal dated June 11, 2014; pages 3-8). Objections include: Whether it is appropriate to consider compliance with all 38 conditions of approval or just those that do not involve subsequent land use approvals Whether the provision “failure to fully comply with the conditions must not be the fault of the applicant” applies to all of the conditions of approval or only those that the Hearings Officer in her first decision found relevant Applicant’s argument that “exercise” does not mean “compliance” Applicant’s argument for an exception to the Beck rule prohibiting raising new issues Applicant rebuts Opponents’ arguments in its June 18 submittal, citing Gage v. City of Portland, Siporen v. City of Medford and Canfield v. Umatilla County (Applicant’s submittal dated June 18, 2014; pages 1-4). Arguments include: The Board is the final arbiter of its own code (ORS 197.829(1) LUBA gives deference to the Board’s interpretation of it code as long as that interpretation is plausible The Court of Appeals shall affirm LUBA unless it found the order to be unlawful in substance or procedure (ORS 197.850(9)(a)) Applicant objects to Opponent’s testimony regarding comments made by former County Commissioners on the original CMP decision on the basis of impermissible attempt to re- litigate that approval. Those comments were critical of the application materials and questioned the completeness of the application. Applicant cites to Lord v. City of Oregon City (Applicant’s submittal dated June 18, 2014; p.7). 5 Issue Board Options Information in Record Staff Comment 22.36.020(A)(3) means. The Court of Appeals was required to affirm LUBA unless it found the order to be unlawful in substance or procedure (ORS 197.850(9)(a)). The Board is free to interpret DCC 22.36.020(A)(3) as long as its interpretation is plausible. c. Other. 8. Determine, as to each remaining condition of approval, whether it has been: Exercised Substantially Exercised If not exercised or substantially exercised, whether the Applicant is at fault. 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.’ 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 fault of the Applicant because the contingency that would trigger obligations under the condition does not and may never exist or the Applicant’s failure to obtain additional prerequisite land use approvals is not the Applicant’s fault. The Hearings Officer found that most of the CMP conditions of approval under consideration impose contingent obligations on the Applicant that did not occur before the CMP approval became void, and the Applicant’s failure to fully comply with contingent obligations was the Applicant’s fault. She found that she lacked authority to consider whether the Applicant substantially exercised most of the conditions with which the Applicant failed to fully comply because noncompliance was the Applicant’s fault (HO decision; pages 27-31). The Applicant asserts that all conditions of approval have been fully complied with but if the Board finds otherwise then any failure to fully comply with these contingent conditions of approval was not the Applicant’s fault because: Delay in the BLM approval of the wildlife mitigation plan. TRC’s bankruptcy proceedings and other economic considerations. Opponent’s appeals. Futility of initiating FMP remand. (Applicant’s Power Point presentation, June 4, 2014) The Opponent asserts that 22 conditions of approval have not been substantially exercised or fully complied with and failure to fully comply with these contingent conditions of approval was the Applicant’s fault because: Mitigation measures on BLM land could have been resolved prior to submitting the CMP and/or resolved between February 2011 and December 2012 (Opponent’s submittal dated June 11, 2014; pages 9-10). The financial difficulties experienced by TRC predate the bankruptcy proceedings and the effects of the recession. Opponent’s appeals tolled the expiration date of the approval and Opponent cannot be blamed for Applicant’s delay in initiating the FMP remand. Applicant 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. 6 Issue Board Options Information in Record Staff Comment was the Applicant’s fault. 9. Determine whether the conditions of approval, when viewed as a whole, have been substantially exercised. a. The conditions of approval, when viewed as a whole, have been substantially exercised. b. The conditions of approval, when viewed as a whole, have not been substantially exercised. The Hearings Officer found that 22 conditions and portions thereof were not fully complied with and that such 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 determine whether the destination resort approval conditions as a whole have been exercised to a significant degree, and that determination necessarily requires an evaluation of the significance of conditions relative to the overall development. The Hearings Officer found that 7 of the 15 conditions of approval that were fully complied with (Conditions 9, 13, 14A, 14B, 22, 36 and 37) require only notations on the FMP, revisions to and filing of CC&Rs, modification of a density chart and coordination with the Sheriff. In contrast, she found the other 8 conditions (3, 8, 10, 11, 15, 19, 24 and 30) are relatively more significant 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, submitting and obtaining county approval of detailed and complex plans for traffic circulation and fire protection). Ultimately, the Hearings Officer 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 Hearings Officer also found that 4 additional conditions of approval had been fully complied with (Conditions 1, 14E, 23 and 32). The Hearings Officer 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 of what was not approved by the CMP. The Hearings Officer found the remaining 22 conditions of approval and portions thereof with which the Applicant either failed to fully comply or did not substantially exercise required the majority of significant 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 exercised before FMP approval or concurrently with an FMP are relevant. Here, every one of those conditions has been fully exercised. If full exercise exists, then substantial exercise also necessarily exists. Forty of the 41conditions 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 permissible, 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 of the conditions as a whole must exist. The Board can give more or less weight to any particular condition; the Board needs to make this determination by considering all approval conditions relative to each other and their importance to the project. Sample motion for BOCC: “Move that the BOCC find that when viewed as a whole the approval conditions in the CMP have/have not been substantially exercised.” 7 Issue Board Options Information in Record Staff Comment Substantial exercise exists if every 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 fault, as described under Issue #7, above. (See Applicant’s final argument dated June 25, 2014)