HomeMy WebLinkAboutThornburgh Backup DocsTE" 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
TONKONTORPLLPn
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
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