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HomeMy WebLinkAboutOpponent Rebuttal LtrPaul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 (541) 420-8455 pdewey@bendcable.com June 18, 2014 Deschutes County Board of Commissioners 1300 NW Wall St. Bend, OR 97701 Re: Loyal Land, LLC File No. DR -11-8 Remand from Land Use Board of Appeals and Oregon Court of Appeals Dear Commissioners: This letter is on behalf of Nunzie Gould in response to Loyal Land's letter and submittals of June 11. We will respond according to each of the Applicant's categories in that letter. SUMMARY OF ARGUMENT Loyal Land's new letter and materials do not establish that it initiated use of the resort CMP. As much as Loyal Land attempts to divert the Board's attention to looking at other resorts, or appeals, or the BLM, or the economy, it cannot avoid the fundamental facts that the Thornburgh CMP decision is unique to that resort and has no applicability to other resorts and that Loyal Land did not obtain available extension periods and, even when it did obtain a one-year extension, it did not make use of it. In fact, there was no reason for Loyal Land to be pursing an initiation of use determination in the first place at such a preliminary stage of development of the resort. Loyal Land had at least four years of extensions within which to pursue the resort development and the logical approach would have been to accomplish as much as possible on the resort before seeking a determination of initiation of use. Its failure to do more is its fault. "History of Destination Resort Approvals in Deschutes County" Loyal Land asserts that the history of destination resort approvals in Deschutes County "demonstrates the near impossibility of meaningful destination resort development if the hearings officer's interpretation of the DCC is adopted." This is not correct for three reasons. 1. First, each development is unique and depends on the wording and terms of each resort approval. In this case LUBA found, as affirmed by the Oregon Court of Appeals, that the wording of Thornburgh CMP decision meant that approval of subsequent land use approvals was required. Since LUBA said that other destination resort CMP decisions do not need to require that language and even suggested other approval language to avoid that result (see LUBA Slip Op. 19), there is no reason why this situation would ever be repeated. The result here is due to the CMP decision and its particular conditions of approval, not any interpretation of the County Deschutes County Board of Commissioners June 18, 2014 Page 2 Code. It is also the product, as Commissioner Luke pointed out, of an application that was incomplete in the first place and relied on many conditions of approval being carried out. All of the so-called interpretations of the Code that Loyal Land attributes to the Hearings Officer are actually interpretations of the Thornburgh CMP decision made by LUBA and the Court of Appeals. Loyal Land's Table of Resort Approval Dates is of no use for comparison with the Thornburgh Resort except that it shows the variability of development in various resorts. The Table does not reveal the efforts of each developer or the extent to which they pursued extensions to carry out their developments. Also, the column of "Time elapsed between final CMP and last approval" is irrelevant as to Thornburgh since the running of the two-year expiration period for the CMP was tolled due to appeals (meaning that Thornburgh got an automatic one and a half year extension). Loyal Land argues that a difference between Thornburgh and other resorts is that it had more appeals. That is irrelevant to the issue of whether the CMP permit expired here since appeals of the CMP actually extended the time for the permit. Also, the last appeal of the CMP was resolved in April of 2008, six years ago. The last appeal of the FMP ended in February 2010 (LUBA Slip Op. 3), four years ago. The true difference between these other resorts and Thornburgh is that they pursued and obtained extensions of time within which to complete their resorts under the County's liberal extension opportunities, while Loyal Land did not. Loyal Land also contends it could not have completed all seven phases of the resort within two years. Actually, neither LUBA nor the Hearings Officer required that. LUBA stated: "[I]t is simply inaccurate...to say that the applicant would necessarily have to completely construct the Thornburgh Destination Resort to avoid having the April 15, 2008 CMP decision become void...All that would be required is for the hearings officer to find that for any conditions of approval that are not fully exercised because the applicant failed to secure additional permits that are necessary to fully comply with such conditions of approval, that failure was not the applicant's fault." (LUBA Slip Op. 21) The Hearings Officer also explained: "I find it would have been possible for TRC to obtain approval of the final FMP and the tentative and final plats for the first two phases of the Thornburgh Destination Resort before November 11, 2011. Securing those approvals would not have constituted full compliance with all CMP conditions because, as discussed in the findings below, several conditions require action related to resort construction. Nevertheless, it would have been full compliance with at least 9 of the remaining CMP conditions requiring actions contingent on final plat approval. It also could have provided the foundation for a finding that the CMP conditions of approval "viewed as a whole" were substantially exercised given the Deschutes County Board of Commissioners June 18, 2014 Page 3 significance of obtaining CMP and FMP approval and tentative and final plat approval for the first two development phases." (Original emphasis; footnote omitted.) (HO Dec 31) Additionally, if the resort were so advanced that it was in the midst of its phases, it is highly unlikely that the Applicant would have a sought a determination of initiation of use based on DCC 22.36.020(A)(3) regarding satisfaction of conditions of approval. At that point, the Applicant would be asserting that substantial construction had already occurred under DCC 22.36.020(A)(2). Finally, Loyal Land asserts that the Hearings Officer's decision "would make all destination resorts of any complexity... untenable" and presumes that "the county would be denied the many benefits of destination resorts." Nothing in Linda Swearingen's Power Point is relevant here. The issue before the Board is not the benefits or disadvantages of destination resorts, but whether the CMP permit for this particular resort expired and whether the Applicant was at fault for not fully complying with the conditions of approval. It should also be noted that the information in this Power Point from 2004-07 is seriously outdated, as is the 2005 design for the Thornburgh Resort itself. The Thornburgh mega resort model of 2005 is no longer being proposed in the market that now is seeing small eco -resorts or smaller resorts to be located near existing developments like Sunriver or near Bend. There is a reason why the State and Deschutes County have rules providing that permits expire after a certain time period. Over time, development proposals, like the Thornburgh Resort, become outdated, markets change, ownerships become fragmented through bankruptcies and the viability of what was originally proposed and approved in a land use permit disappears. This is particularly the case with the Thornburgh Resort which still lacks an FMP and where the new owner of the land has done nothing to pursue the FMP for three years. "Continuous Commitment of the Developers to Project Completion" The Applicant asserts that it was not dilatory in pursuing the project and devoted substantial resources to it, "which includes the time period after the FMP was remanded to the County in August 2010. There is simply no evidence of such work and substantial resources on the FMP remand. Following the February 2010 remand by the Court of Appeals, there has simply been no initiation of the remand by the Applicant. Even after the BLM in 2011 said where wildlife mitigation could occur, and even after Loyal Land got a one-year extension in 2012 from the County so that it had one year and nine months to initiate the remand, and even though Loyal Land asserts the remand only involved "minor" issues, and despite all further work on the resort being dependent on getting FMP approval, Loyal Land did not even initiate the FMP remand. Confusingly, after complaining of "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," Loyal Land states that "trying to lay blame somewhere is an Deschutes County Board of Commissioners June 18, 2014 Page 4 unnecessary diversion" and "regardless of who...is at fault," the Applicant is not at fault. This argument for a "no fault" standard for non-compliance with conditions of approval is simply contrary to the Code which requires that the Applicant prove that it is not at fault for not fully complying with all conditions. "Request for Extensions of the CMP" Loyal Land attempts to excuse its late filing for a second extension (which was only one day before what it thought was the deadline) on the basis that "[a]t the time, there was no definitive ruling on when the CMP was due to expire." Well, if that was the case, it would have been prudent for Loyal Land to have acted conservatively and filed early in an abundance of caution, not just one day before the latest possible deadline. Loyal Land also states that its extension application "was put on hold pending a decision on the declaratory ruling request." There was no reason, however, for that being put on hold except that Loyal Land chose to request it, deciding to put all of its eggs in the basket of a determination of initiation of use. The requests for an extension and a determination of initiation of use were not mutually exclusive. Loyal Land could have pursued the extension and done work on the FMP while it was simultaneously pursuing the initiation of use determination. Again, it was premature anyway to pursue the initiation of use before getting the extensions and further pursuing development. Loyal Land then blames LUBA's ruling that the expiration date was November 18, 2011, for why it was late in filing for a second extension. However, as LUBA points out, the clear issue before LUBA was whether the permit expired on October 26 or December 7, or somewhere in between. (LUBA Slip Op. 10-11) Given that range of dates of possible determinations of when the permit expired, Loyal Land could have very simply and conservatively applied for an extension on the earliest possible date, October 26, not the latest possible date in December. Loyal Land in its June 11 letter to the Board states: "All parties understood December 7 to be the relevant date based on the Hearings Officer's April 12, 2012 decision." That is obviously not correct. Ms. Gould appealed that date to LUBA, arguing it should be October 26. (LUBA Slip Op. 10-11) It is also not correct for Loyal Land to claim "that the expiration date was changed retroactively by LUBA." There was nothing "retroactive" about LUBA's decision. Since the Hearings Officer's decision and her determination of an expiration date were appealed, there was nothing "final" about them. Everyone knew LUBA was going to decide the expiration date was between October 26 and December 7. Deschutes County Board of Commissioners June 18, 2014 Page 5 Furthermore, if Loyal Land did not like LUBA's ruling on the expiration date being November 18, then it should have appealed that issue in its appeal to the Oregon Court of Appeals, but it did not do so. Loyal Land then blames the County because the Applicant was allegedly informed by County staff that its second application would be denied. Even if Loyal Land was told that, it does not mean Loyal Land could not have still pursued the second extension and appealed any County staff denial to the Board of Commissioners. Instead, Loyal Land simply gave up and withdrew all of its applications for extensions of time. That is Loyal Land's fault, not the fault of the County or of LUBA. "Additional Evidence" Loyal Land then lists additional evidence allegedly "relevant to this appeal."' Most of this evidence isn't even referenced in its letter, however, including emails from Mr. Kahlie and Mr. Bryant, photographs of road improvements and a Thornburgh recreation amenities plan. Presumably the Kahlie email is to relate to Condition of Approval #18 which provided that no development would be allowed on slopes of 25% or more. The Hearings Officer found this condition had not been "substantially exercised" because no development occurred and that it was the Applicant's fault for failing to fully comply with the condition since it "was responsible for its delay in initiating the FMP remand." (H.O. Decis., p. 37) That some design work was done on the 25% rule only for "Phase A" does not constitute a "substantially exercised" condition where there were seven phases and no development even occurred on Phase A. The Bryant email apparently is to relate to Condition of Approval #29 requiring compliance at all times with the MOU with ODOT. The Hearings Officer found that it was unnecessary to consider whether this condition was substantially exercised since the Applicant was at fault for not pursuing the FMP and other approvals. But she also found it was not substantially exercised since the Thornburgh development that would have triggered ODOT improvements (such as at Hwy 20 in Tumalo) did not occur. (H.O. Decis., p. 41) The photos of a road are presumably related to Condition #4 that "any secondary ingress/egress across the BLM-owned land or roadways shall be improved" and that "[e]mergency secondary resort access roads shall be improved before any Final Plat approval." The Hearings Officer found that the determination of whether the condition was substantially exercised was unnecessary since the Applicant was at fault for not fully complying with the condition (because of its delay in initiating the FMP remand and obtaining other approvals). But the Hearings Officer also found that the condition was not substantially exercised, that merely obtaining right- of-way from BLM was not enough. (H.O. Decis., p. 33) All of this and the other evidence submitted by Loyal Land in this remand should not be considered as they are outside the scope of LUBA's remand. LUBA clearly did not remand the case for reopening the record as it directed only the making of findings. (LUBA Slip Op. 21) We have also submitted evidence, but only to respond to Loyal Land's evidence. None of it should be considered. Deschutes County Board of Commissioners June 18, 2014 Page 6 The three emergency secondary resort access roads are not even identified and the construction of the Hwy 126 North access road necessary to serve the proposed first phase is irrelevant to that condition. That is relevant to Condition #3 requiring a connection to Hwy 126 which the Hearings Officer already found to be satisfied. It is not clear why the Thornburgh recreation amenities plan is attached to Loyal Land's letter, as it relates only to Condition of Approval #13 requiring the Applicant to specify all recreational facilities within the proposed resort, which the Hearings Officer already found to be satisfied. Note that what the Hearings Officer found not to be satisfied was Condition of Approval #12 requiring "commercial, cultural, entertainment or accessory uses" not to be oriented to public roadways, to be incidental to the resort itself and to be contained within the development. The recreation amenities plan really does not address this condition. We do disagree with the Hearings Officer in one respect, that Condition #38 regarding a wildlife mitigation plan "was substantially exercised" since the plan was ultimately rejected by LUBA and the Court of Appeals. It would be illogical to presume that the mere submittal of an inadequate wildlife plan with the FMP would satisfy this condition of approval.2 The Applicant is also incorrect in suggesting at p. 9 of the Power Point that Condition of Approval #28 is irrelevant, as if it was superseded by Condition #38. In fact, Condition #28 concerns all elements of the MOU with BLM, not just with wildlife issues.3 CONCLUSION Just as with other land use permits which have expired in Deschutes County, where applicants are required to resubmit applications if they wish to pursue development, the same should apply to the Thornburgh Resort. Just because it is a large proposed development does not mean that it should somehow be excused from the requirements that apply to all other developments in the County. Very truly yours, PAUL DEWEY cc: Client David Petersen 2 She found, though, and Loyal Land agrees, that it wasn't fully complied with. As the Hearings Officer determined, that was Loyal Land's fault for not initiating the FMP remand. 3 Loyal Land has included a copy of Hearings Officer Briggs' FMP conditions of approval apparently to allegedly show that CMP Condition of Approval #28 was dropped and replaced with new conditions #38 and #39. That is an error since Condition #28 was broader than just the wildlife plan addressed by Conditions #38 and #39. Also, the controlling decision on the contents of the CMP conditions of approval is the Board's CMP decision, not the Hearings Officer's FMP decision. What is being construed here are the CMP conditions of approval, not the FMP conditions of approval. The Board's CMP Condition of Approval #28 is still in effect.