Loading...
HomeMy WebLinkAboutLoyal Land Rebuttal DocTONKONTORPLLPn David J. Petersen Admitted to practice in Oregon and California June 18, 2014 VIA E-MAIL (kevinKko.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 constitutes the applicant's rebuttal to the June 11, 2014 letter from counsel for Ms. Gould in the above-referenced appeal. 1. The Board Is The Ultimate Arbiter Of What The DCC Means. Most of Ms. Gould's letter is devoted to arguing that the Board is bound by the interpretation of DCC 22.36.020.A.3 made by LUBA in its January 8, 2013 decision remanding the first decision of the Hearings Officer. This is not the law. This Board has not previously spoken on the proper interpretation of DCC 22.36.020.A.3. It is not restricted in interpreting that code provision now. To understand why this is so, it is necessary to briefly revisit the history of this case. In her first decision on April 12, 2012, the Hearings Officer rejected Ms. Gould's argument that DCC 22.36.020.A.3 requires the developer to satisfy all the conditions within two years of the date of CMP approval. Instead, she interpreted DCC 22.36.020.A.3 to say that only those conditions that required compliance before FMP approval were relevant to whether or not the CMP was initiated. (April 12, 2012 Decision, p. 23.) This was a sound interpretation, and the applicant agreed with it, so it had no reason to appeal the decision to this Board. Ms. Gould filed an appeal, but the Board declined to hear it. Ms. Gould then appealed the Hearings Officer decision to LUBA, which disagreed with the Hearings Officer and instead adopted a different interpretation. LUBA's interpretation requires compliance with all conditions within two years of CMP approval, not just those conditions the Hearings Officer found relevant. Mr. Kevin Harrison June 18, 2014 Page 2 The applicant appealed the LUBA decision to the Court of Appeals, which affirmed LUBA without a written opinion. LUBA then remanded the matter back to the County. Under DCC 22.34.020 the matter returned to the Hearings Officer, who (as required) applied the interpretation adopted by LUBA to reach the decision now on appeal. ORS 197.829(1) provides that LUBA "shall affirm" a local government's interpretation of its own land use regulations except in limited circumstances not applicable here. Under the statute, the "local government" means only the highest governing body of that government, which in this case is the Board; an interpretation of local land use regulations by a Hearings Officer is not entitled to deference under ORS 197.829(1). Gage v. City of Portland, 319 Or 308, 315 (1994).1 The corollary of ORS 197.829(1) is ORS 197.829(2), which provides that in the absence of an interpretation by the local government (i.e., the Board), LUBA may interpret a local code provision itself. The Oregon Supreme Court explained the principle behind ORS 197.829(1) in Siporen v. City of Medford, 349 Or 247, 258 (2010): At least one of the fundamental ideas behind applying [ORS 197.829(1)] is that, when a governing body is responsible for enacting an ordinance, it may be assumed to have a better understanding than LUBA or the courts of its intended meaning. Simply put, the Board is the final arbiter of what its own code means. Here, the Board has not determined what DCC 22.36.020.A.3 means, nor has it had the opportunity to do so. This appeal after remand is the Board's first opportunity to interpret this code provision in the context of this case and DCC Chapter 18.113. That also means that no party has had the opportunity to appeal the Boards interpretation. This exact factual situation was discussed by the Court of Appeals in Canfield v. Yamhill County, 142 Or App 12 (1996). As here, in Canfield LUBA interpreted a local code provision pursuant to ORS 197.829(2) because the local government had not done so. The Court of Appeals upheld LUBA's interpretation as the only plausible interpretation of the code, and the matter was remanded for further proceedings at the County. Id. at 19. In connection with the remand, the Court of Appeals stated: We do not decide the underlying question of whether a local government, on remand, may interpret its legislation differently from the way LUBA or we interpreted it, pursuant to ORS 197.829(2), in remanding the decision. ... [This] question is academic in this case because, as we have noted, LUBA's disposition of the narrow interpretive issue it addressed is the only plausible one. Therefore, no questions of deference or of I See also the January 8, 2013 LUBA Decision, p. 4 line 23 to p. 5 line 6. incupN TORP Mr. Kevin Harrison June 18, 2014 Page 3 relative interpretive authority can be presented by the unambiguous facet of the ordinance that LUBA addressed. Id. at 20 fn. 4 (emphasis added). Thus, as of 1996, there was no law addressing the precise factual situation presented here: when LUBA interprets a local land use regulation under ORS 197.829(2) because there has been no local government interpretation, can the local government interpret the regulation differently on remand? There have been no cases since 1996 on this issue either. Consequently, Ms. Gould is incorrect that the County is barred from questioning LUBA's interpretation by Beck v. City of Tillamook, 313 Or 148 (1992). Beck predates Canfield, so if Beck was on point we would not have footnote 4 of the Canfield opinion. Also, Beck did not concern interpretation of local land use regulations. Instead, Beck stands for the more general proposition that issues previously raised and resolved in a land use proceeding may not be raised again. Since the interpretation of DCC 22.36.020.A.3 has never been presented to the Board before, it is not an issue previously resolved in this proceeding. Beck cannot be read to deprive a party or the Board of the substantial benefit of a Board interpretation of its own code.2 Ms. Gould also is incorrect that the Court of Appeals' affirmance of LUBA without opinion prevents the Board from interpreting DCC 22.36.020.A.3 now. The Court of Appeals has no more authority over interpretation of the DCC than does LUBA. 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). When the local government has in fact interpreted its own code, and that interpretation is plausible, then it is to be given deference over LUBA's interpretation because, as Gage makes clear, LUBA does not have the familiarity with the local code that the local governing body has. Siporen at 259. But if the local government has not spoken (as in this case), and LUBA's interpretation is arguably correct, then LUBA's order is not unlawful and will be upheld. See Canfield at 19. Thus, the most that can be said for LUBA's interpretation of DCC 22.36.020.A.3 is that it is arguably correct (albeit without the benefit of local knowledge) and therefore "not unlawful." This does not mean that no other equally (or more) plausible interpretation exists. Mark Latham Excavation, Inc. v. Deschutes County, 250 Or App 543, 555 (2012) ("the existence of a stronger or more logical interpretation does not render a weaker or less logical interpretation implausible under the Siporen standard"). Since the Board is still free to interpret DCC 22.36.020.A.3, and that interpretation must be given deference, then any "plausible" interpretation by the Board that 2 The Board did not have this opportunity following the first Hearings Officer decision. As noted above, the applicant agreed with the first decision, so it had no reason to appeal her interpretation to the Board. It would be ridiculous to suggest that the applicant should have appealed the Hearings Officer's decision anyways, in an attempt to get the Board to agree with the Hearings Officer and thereby insulate her interpretation with the deference provided by ORS 197.829(1). If anything, the Board's refusal to hear Ms. Gould's appeal of the first Hearings Officer decision suggests that the Board agreed with the Hearings Officer's interpretation. Tn9k1,16pNTORPup Mr. Kevin Harrison June 18, 2014 Page 4 does not otherwise violate ORS 197.829(1) must be upheld, even if different from LUBA's interpretation. In summary, while the Hearings Officer was obligated to apply LUBA's interpretation of DCC 22.36.020.A.3 on remand, this Board is not. This Board can, and should, freely consider the correct interpretation of that code provision and apply it to the facts of this case, even if the Board's interpretation differs from LUBA's. If that interpretation is plausible and does not otherwise fall within the narrow exceptions of ORS 197.829(1), it must be upheld on appeal. This rule is grounded in good public policy, because (as the Legislature recognized in enacting ORS 197.829(1)) the local governing body has a better understanding of its land use regulations than does LUBA or the Court of Appeals. 2. Full Compliance With A Condition Is Not The Same As Full Exercise. The Hearings Officer's decision now on appeal is the first time that the term "full compliance" as used in DCC 22.36.020.A.3 has been equated with "full exercise." There was no need nor opportunity to raise this issue in any previous proceeding. Accordingly, it is not barred by the raise-it-or-waive-it rule. The Hearings Officer repeatedly erred in equating "compliance" with either "exercise" or "performance." The most prominent example is her holding that in order to find full compliance with a contingent condition, she must be able to find that the non-occurrence of the contingency was not the applicant's fault. (See, e.g. March 17, 2014 Decision, p. 26.) This holding, which she applied to all of the 21 conditions at issue in this appeal,3 required the applicant to act (i.e. to exercise or perform the condition or some preliminary step) in order to be in compliance, thereby equating exercise and compliance to mean the same thing. (March 17, 2014 Decision, pp. 32-43). Other examples include (emphases added): • Page 31: "Securing those approvals would not have constituted full compliance with all CMP conditions ... [n]evertheless, it would have been full compliance with at least 9 of the remaining CMP conditions requiring actions contingent on final plat approval."4 • Page 31: "The applicant has the burden of demonstrating its failure to fully comply with Condition 2 was not its fault. The applicant argued [various reasons it was not at fault]. The Hearings Officer has found that the applicant's nonperformance cannot be excused for these reasons." 3 These are conditions 2, 4, 5, 6, 7, 12, 14C, 14D, 16, 17, 18, 20, 21, 25, 26, 27, 29, 31, 33, 34 and 35. The Hearings Officer's decision that the other conditions were fully exercised (except for condition 38 which was substantially but not fully exercised) has not been appealed and is therefore final. 4 The next sentence then discusses how those "actions" could be evidence of substantial exercise of the conditions, further equating compliance with exercise by concluding that the same factors are relevant to both. In9VNONTORPLip Mr. Kevin Harrison June 18, 2014 Page 5 The first step in construing the words in a statute is to examine the text and context of the words used. State v. Gaines, 346 Or 160 (2009). Here, DCC 22.36.020.A.3 requires a showing of substantial exercise of the conditions and that failure to fully comply with any conditions is not the applicant's fault. One must presume that different words were used on purpose; if the same meaning was intended in both places then the same word would have been used twice. But, since two different words are used, the only interpretation consistent with the text and context of the statute is to give them different meanings. "Compliance" means "the practice of obeying a law, rule or request," so non-compliance means to disobey. "Exercise" in this context means "an action that has a particular plan, purpose or result."5 The distinction between the two is significant and fundamental. One can be in "compliance" without doing anything, but "exercise" or "performance" requires an act. As discussed above in Part 1, the Board is not bound by the interpretation of DCC 22.36.020.A.3 made by LUBA and applied by the Hearings Officer in the decision now on appeal. The better interpretation that should be applied is one that properly distinguishes between "exercise" and "compliance" as those terms are used within DCC 22.36.020.A.3. As explained at the June 4, 2014 hearing, with respect to each and every one of the 21 conditions of the CMP under review in this appeal, the applicant is in full "compliance" with the condition because it has always obeyed and has never violated the condition. No evidence whatsoever has been introduced showing non-compliance with any condition. Thus, full compliance exists even if the applicant has not "exercised" the condition; i.e. it has not performed the act required by the condition or some preliminary step. Because the applicant is in full "compliance" with each condition, the question of fault is irrelevant. The only remaining question is whether the conditions of approval have, as a whole, been "substantially exercised." "Substantial exercise" clearly exists on the facts of this case, since it is difficult to conclude what more the applicant could possibly have done given the posture of the project at this time. All of the conditions that could have been exercised by this point have been exercised in full (except condition 38 which has been substantially but not fully exercised), and the applicant is in full compliance with the remainder. 3. The Evidence In The Record Overwhelmingly Shows An Unbroken Commitment To Completing The Project. The heart of Ms. Gould's arguments regarding fault is that the applicant and its predecessor took too long to move the project along. This is not a good faith argument, since her mostly unsuccessful, but time-consuming, attacks on the project at every juncture played a major role in the delays. All the evidence in the record shows that the good faith of the applicant and its predecessor is unquestionable and is a better measure of fault (or lack thereof) than the failure on occasion to satisfy legal standards that even LUBA (in the case of the wildlife plan) first misapplied. 5 These definitions are from the American English version of www.macmillandictionary.com. Trico NTORP LLP Mr. Kevin Harrison June 18, 2014 Page 6 Ms. Gould trumpets her occasional success in appealing project approvals, but fails to acknowledge that it only takes one error to sustain an appeal. When viewed as a whole, her batting average is very low — the vast majority of her assignments of error have been rejected. She tries to attribute her rare success to some failing on the part of the applicant or its predecessor, but she has been unable to provide any evidence that the applicant knowingly or negligently failed to meet a land use standard. On occasion, the applicant, its predecessor, the County or LUBA may have misunderstood what a standard required, but less often than Ms. Gould herself, judging by the number of times LUBA and other courts agreed with the County's conclusions rather than hers. LUBA's four opinions prior to the FMP remand indicate that Ms. Gould frequently attributed error when, far more often than not, there was none. Ms. Gould oversimplifies an extremely complex series of events into a simple up-or-down declaration of undue delay. And, in arguing that the applicant should have initiated the FMP remand, Ms. Gould argues for an interpretation of the DCC that violates ORS 215.435(2)(a), which specifically gives the applicant full discretion as to when to initiate a land use remand.6 Given her substantial role in dragging out the application process for years by sounding numerous false alarms, it is unpersuasive to now complaint that it has taken too long. Her complaints have nothing to do with good land use decision making. In truth, the most significant factors that have delayed this project are unique in living memory: globally driven, immensely complicated, diverse and unanticipated. Despite these factors, the applicant has introduced an abundance of evidence showing that it and its predecessor invested a tremendous amount of time, money and manpower to advancing the project at all times, and took significant risks to accelerate the development schedule. The applicant and its predecessor continuously did the best they could in trying circumstances not of their own making. The Board must decide from the evidence if the conditions have been fully complied with, and if not, what "fault" means and whether the lack of full compliance is the applicant's fault.7 It would be an injustice to the applicant and a distortion of the plain meaning and intention of the code to find fault in this situation. When considered as a whole, the evidence reveals a development effort focused singularly on project completion as fast as possible, and not tardiness, inattention or fault. To now blame the applicant for the passage of time, especially given Ms. Gould's central role in slowing things down, would reward the tactics of delay and unfairly penalize the applicant. 6 ORS 215.435(2)(a) states that: "the 90-day period (to issue a decision following remand from LUBA) shall not begin until the applicant requests in writing that the county proceed with the application on remand." 7 Ms. Gould's footnote 2 is incorrect in suggesting that the definition of fault is a resolved issue. This might be true if any specific definition had previously been given to the term prior to the decision under appeal, but that has not occurred. The Board must interpret what "fault" is. 1101 TORNIEVNTORPap Mr. Kevin Harrison June 18, 2014 Page 7 4. Ms. Gould May Not Re-Litigate The 2006 Approval Of The CMP. At the hearing and in her written materials, Ms. Gould refers several times to opinions and statements of former County Commissioners involved in the approval of the Thornburgh CMP in 2006 and that are critical of the proposed project. The fact remains that the Board approved the CMP twice, and its final decision was upheld after several appeals. References to out-of-context statements of individual commissioners from nine years ago are an impermissible attempt to re-litigate the CMP approval and should be disregarded. Lord v. City of Oregon City, 43 Or LUBA 361, 371 (2002) ("it is the written decision that the city commission ultimately adopted that constitutes its decision in this matter [and] that is subject to LUBA's review on appeal, not the oral statements of individual city commissioners that were made during their deliberations below"). 5. The DCC Expressly Provides That The CMP Is The "Framework" Of The Resort, Not The "Cornerstone." Ms. Gould characterizes the CMP as something it is not. She argues that it has "the central role" in the destination resort approval process and that it is the "cornerstone" of a destination resort approval. That is not what the DCC says, nor is it what the Board intended in enacting DCC Chapter 18.113. Instead, DCC 18.113.050 expressly describes the CMP as a "framework." Ms. Gould's attempt to rewrite DCC 18.113.050 also is inconsistent with DCC 18.113.040. That section expressly states that "the authorization of a permit for a destination resort shall consist of three steps" — the CMP, the FMP and site plan review. None of these steps is expressly given priority or elevated importance over the other, since all three are required before a resort can be built.8 While it is true that DCC Chapter 18.113 describes in detail the requirements for the CMP, this is only because the CMP is the first step of the three-step process. DCC 18.113.040.B provides that the FMP must "incorporate all requirements of the County approval for the CMP" and must otherwise comply with the CMP. And, DCC 18.113.040.0 requires that at tentative plat/site plan review, there must be a finding of compliance with the FMP. Thus, all the criteria and requirements applicable to CMP approval are carried forward to both the FMP and tentative plat/site plan review. The difference between a "framework" and a "cornerstone" is significant in the context of this case. A framework is only a piece of a puzzle; something that requires further construction before achieving a final result. Without that additional work, the project is not complete. A cornerstone, on the other hand, takes center stage and reduces any subsequent steps to mere trivialities. If DCC Chapter 18.113 was to be rewritten to make the CMP the cornerstone of a destination resort approval, then LUBA's interpretation of DCC 22.36.020.A.3 8 If any step is to be given elevated importance, it should be the FMP. Once the FMP is approved, the CMP has no further purpose, while the FMP is forever the guiding document thereafter for development and operation of the resort. ig3,1NTORP Lip Mr. Kevin Harrison June 18, 2014 Page 8 requiring full compliance with all conditions before CMP expiration might make more sense. But since the CMP is only a framework, no greater in stature than the remaining two steps of destination resort approval, LUBA's interpretation is unsupportable. Instead, the CMP as a framework is more consistent with the Hearings Officer's original interpretation evaluating only those conditions of approval that required compliance before FMP approval in determining whether or not the CMP was initiated. Finally, Ms. Gould made substantially these same arguments to the Hearings Officer in the original hearing, and her arguments were rejected. (April 12, 2012 Decision, p. 20.) She did not appeal this issue further. Consequently these claims are raised and resolved and, pursuant to Beck, may not be raised again before this Board. 6. Ms. Gould Mischaracterizes Legal Argument As Factual Misstatements. Ms. Gould alleges in Part E of her counsel's letter that the applicant's evidence includes a number of factual misstatements. However, most of her alleged "factual" errors are actually restatements of her legal arguments, specifically: • June 4 PowerPoint - items a, b, c, g and h; • Livingston letter - items c, e, f and h; • DeLashmutt affidavit - items a, b, h, j, 1, m, n and o; • Peterson Economics report — all items;9 and • Larsen affidavit — item a. As to the few allegations that remain, most are immaterial. Only a few merit a specific response: • History of Extension Requests. This is discussed in my letter of June 11, 2014. I did incorrectly state at the June 4 hearing that the first extension request was granted. In fact, the extension request was put on hold and never decided. It was withdrawn once the County made clear that the second extension request would be denied. • Availability of Other Wildlife Mitigation Sites. Ms. Gould claims that it has not been established that further action on wildlife mitigation sites was not possible until February 23, 2011. This is incorrect. This fact is established from the February 23, 2011 e-mail and attached letter from BLM submitted to the Hearings Officer, which the Hearings Officer found she could not consider but is now available to the Board in this de novo review. She also argues that other mitigation areas could have been considered outside of Cline Buttes, but the approved wildlife mitigation plan specifically required wildlife mitigation within Cline Buttes. In the appeal of the FMP, the Court of Appeals stated: "the nature of the mitigation plan proposed for BLM land is clear: ... Thornburgh will 9 The correct spelling of Jon Peterson's last name should be noted. It is different from the last name of the applicant's attorney, David Petersen. Mr. Peterson and Mr. Petersen are not related. T.,9„NtcpNTORPU_P Mr. Kevin Harrison June 18, 2014 Page 9 restore and enhance about 4,501 acres of juniper woodlands within the Cline Buttes Recreation Area and the [mitigation and monitoring] plan sets out mitigation methods that could be applied to any parcel of land within that area." Gould v. Deschutes County, 233 Or App 623, 643 (2010) (emphasis added). Were the applicant to later choose mitigation sites outside of Cline Buttes, Ms. Gould would have quickly appealed that action as inconsistent with the approved mitigation plan. • Size of the Thornburgh Resort. The size of the proposed resort is irrelevant to these proceedings — nowhere does the DCC apply different criteria based on size. However, it is incorrect to say that the resort would be unusually large. Slide 3 of the Swearingen PowerPoint submitted with my June 11, 2014 letter shows that the Thornburgh Resort would consist of 1,000 homesites and 500 overnight units on 1,970 acres. Other destination resorts in the region range between 350 and 4,261 homesites, between 0 and 1,330 overnight units and between 309 and 3,300 acres, placing the Thornburgh Resort squarely in the middle of the range for each metric. This remains true even if the older resorts of Sunriver and Black Butte are excluded.1° • Reasonableness of Initial Cost Estimate. It was entirely reasonable for Mr. DeLashmutt to budget $600,000 for land use approvals in 2004, given that at that time no "Goal 8" destination resort had yet been appealed to LUBA in Deschutes County. (See table enclosed with my June 11, 2014 letter.) • Access Road and Log Lodge Expenditures. Although not a factual dispute, Ms. Gould argues in item o. regarding the DeLashmutt affidavit that over $2.5 million in expenditures on construction of an access road on BLM land, and the offsite manufacture of a log lodge, are irrelevant. To the contrary, these expenditures show the developer's significant commitment to the project and its willingness to take significant risks to accelerate the development timeline. As to the road, condition 4 specifically required that the road be built. Once the developer had the necessary right-of-way from BLM in 2007 it immediately built the road even though the CMP was not yet final. Construction of the road shows both full compliance with, and substantial exercise of, condition 4. As to the log lodge, the construction lead time on such a large structure was long, so the developer started it early so as to have it ready as soon as possible, again to speed up (not slow down) the development schedule. The log lodge is one of the recreation amenities required by condition 12. Ms. Gould tries to have it both ways, by challenging evidence of expenditures in furtherance of two conditions as irrelevant, while at the same time supporting an interpretation of the DCC requiring that all conditions be exercised within the two-year life of the CMP. 1° Ms. Gould specifically compares Thornburgh to Pronghorn, which in her opinion is a reasonably sized resort. It also happens to be one where she was a member, owned property and her husband has been employed. 13 TR:0E9N TORP Mr. Kevin Harrison June 18, 2014 Page 10 Please include this letter in the record. Thank you and please contact me if you have any questions or concerns. Sincerely, David J. Petersen DJP/dj p cc (by e-mail):Mr. Paul D. Dewey TL TONKONTORPLLPo