HomeMy WebLinkAbout2014-08-13 Business Meeting MinutesI
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
MINUTES OF BUSINESS MEETING
DESCHUTES COUNTY BOARD OF COMMISSIONERS
WEDNESDAY, AUGUST 13,2014
Commissioners' Hearing Room -Administration Building -1300 NW Wall St., Bend
Present were Commissioners Anthony DeBone and Alan Unger; Commissioner
Baney was out ofthe office. Also present were Tom Anderson, County
Administrator; Erik Kropp, Deputy County Administrator; Ken Hales, Community
Corrections; David Doyle and Laurie Craghead, County Counsel; Nick Lelack,
Peter Russell, Cynthia Smidt, Kevin Harrison and Will Groves, Community
Development; and five other citizens.
Vice Chair DeBone opened the meeting at 10:00 a.m.
1. PLEDGE OF ALLEGIANCE
2. CITIZEN INPUT
None was offered.
3. Before the Board was a Public Hearing on Ordinance No. 2014-021, a
Sunriver Plan Amendment from Forest District to Utility District.
Minutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
Page 1 of 11
Cynthia Smidt explained the hearing process on this and the following
Ordinance. (She referred to a PowerPoint presentation at this time.)
The Commissioners had no conflicts to disclose, and there were no challenges
from the audience.
Vice Chair DeBone opened the hearings for both Ordinances.
Tia Lewis, attorney for the applicant, along with Chief Art Hatch of the District,
thanked staff for the hard work. Ms. Lewis said that Chief Hatch has worked
tirelessly for several years to find the appropriate location for training purposes.
Chief Hatch said they hope to proceed on this soon. Ms. Lewis added that there
is another process for the approval and construction of the structure. The
Sunriver Fire Department services a large area, 222 square miles, well beyond
Sunriver; and the facility will be used by other agencies as well. Chief Hatch
said it would be a pre-engineered structure, and it will allow them to practice
live fire training, search and rescue and other vital activities.
UNGER: Move first reading by title only.
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DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
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Vice Chair DeB one conducted the first reading of Ordinance No. 2014-021, by
title only.
4. Before the Board was a Public Hearing on Ordinance No. 2014-022, a
Sunriver Zone Change from Forest District to Utility District.
UNGER: Move first reading by title only.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
Vice Chair DeBone conducted the first reading of Ordinance No. 2014-022, by
title only.
Minutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
Page 2 of 11
5. Before the Board was a Public Hearing and Consideration of First and
Second Readings, by Title Only, and Adoption by Emergency of Ordinance
No. 2014-005, Creating a Code Section that Designates County Job
Classifications that are Authorized to Issue Code Enforcement Citations.
David Doyle said it was determined that some of the code violation laws need
to be updated to authorize certain classifications to issue citations. (He read a
list ofthose who would be authorized.) This would create a new section in
Code.
Commissioner Unger stated that there are issues with the process because of the
lack of authorization, and it is in the best interest of the County to adopt this by
emergency. Vice Chair DeBone asked what the relationship is with the
Sheriffs Office on this. Nick Lelack said there is a long-standing cooperative
relationship with the Sheriffs Office. In practice, the Code enforcement
technicians and others may observe a violation while in the field. They I
research the issue and validate. They interact with the property owner to reach I
an agreement; the citation is not their intent but used as a last resort when
needed. They expect the Sheriff s Office to serve most of these, but others will I
be able to in special situations.
Vice Chair DeBone noted that this will help to provide clarification for those in
the field. I
Vice Chair DeBone opened the public hearing. Being no testimony offered, the
hearing was closed.
UNGER: Move first and second readings by title only, declaring an
emergency.
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DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
Vice Chair DeB one conducted the first and second readings of Ordinance No.
2014-005, by title only.
UNGER: Move adoption of Ordinance No. 2014-005, by emergency.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
Minutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
Page 3 of11
Vice Chair DeBone conducted the first reading of Ordinance No. 2014-021, by
title only.
6. Before the Board was Consideration of Board Signature of Document No.
2014-433, an Intergovernmental Agreement with the Oregon Department
of Corrections regarding Parole & Probation Funding for FY 2014-15.
Ken Hales provided an overview of the item, which provides funding for Parole
and Probation from the State. This covers funding for the second year of the
biennium.
UNGER: Move approval.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
7. Before the Board was Consideration of Board Signature of Document No.
2014-440, The Deschutes County Community Corrections Plan for FY
2014-15.
Mr. Hales said the Public Safety Coordinating Council, at its last meeting,
recommended approval of this Plan by the Board of Commissioners. The only
significant change was the addition of additional Justice Reinvestment revenue,
based on forecasts.
UNGER: Move approval.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
8. Before the Board was Consideration of Deliberations and a Decision on an
Appeal regarding Leading Edge Aviation Fuel Station.
Will Groves gave an overview of the appeal and the information found in the
record. (A copy ofthe matrix showingfindings is attached for reference.)
Commissioner Unger stated that he generally agrees with the Hearings Officer's
decision; Vice Chair DeB one agreed.
Minutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
Page 4 of 11
Issue #1:
Staff recommends adoption of the Hearings Officers' findings on this issue.
UNGER: Move to adopt the Hearings Officer's findings.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
Issue #2:
UNGER: Move to adopt the Hearings Officer's findings.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
Issue #3:
Mr. Groves said that the Hearings Officer struggled with the interpretation of
this one.
UNGER: Move that the Board: 1) interpret 'airport facility relocations or
expansions' to apply to airport infrastructure elements provided by
the airport owner -in this case, the City of Bend -and not to
private development such as the applicant's fueling station; and 2)
interpret this policy as contemplating that the Airport Layout Plan
will be updated after development occurs; thus functioning as an
'as-built' map.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
Issue #4:
Mr. Groves stated there was a statement in the Hearings Officer's decision that
was erroneous. The Airport Layout Plan has been modified several times, but
has not yet been adopted by the County. He recommends clarification, but the
error is harmless and correctable.
Commissioner Unger asked if it should be adopted incrementally. Mr. Groves
replied that the Airport zones will be updated to reflect the new Airport Master
Plan; therefore, the relationship between documents needs to be clear. This will
provide some clarity and will help to assure future documents are clear in this
regard.
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fMinutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
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UNGER: Move that the Board find that while Deschutes County has not
completed adoption of any revisions to the ALP into the
Comprehensive Plan since adopting the 2002 update, it is in the
process of adopting the 2013 update which depicts the applicant's
fueling station on the subject property. Additionally, the Hearings
Officer's findings regarding the adoption of versions subsequent to I
the 2002 ALP was a harmless error. l
DEBONE: Second.
VOTE: UNGER: Yes. I
DEBONE: Vice Chair votes yes.
Issue #5: I
Mr. Groves said this is a purpose statement with aspirational intent. It is not a
Trojan horse to do more. The Hearings Officer did not address this issue.
Commissioner Unger said he believes that the City, which is the owner, needs
flexibility to manage its facility.
UNGER: Move that the Board find that DCC 18.76.010 is intended to signify
that the Code language of Chapter 18.76 is consistent with the
planning goals and objectives outlined in the Comprehensive Plan
and the 1994 Airport Master Plan (as amended by a 2002
supplement, the AMP). The purpose statement in DCC 18.76.010
is not intended to establish the Comprehensive Plan or the AMP as
criteria for evaluating a specific development proposal or
mandatory approval criteria. Chapter 18.76 fully implements those
planning documents as they relate to development in the Airport I
Development Zone, and there is no need for a consistency analysis
for individual development proposals, except where otherwise
expressly required by Code. In summary, the Board interprets DCC
18.76.010 as simply a purpose statement and not an approval
criterion for a development proposal such as the applicant's fuel
facility.
DEBONE: Second. I
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
Issue #6:
UNGER: Move to adopt the Hearings Officer's findings.
DEBONE: Second.
Minutes of Board of Commissioner' Business Meeting Wednesday, August l3, 2014
Page 6 of 11
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
Tom Anderson stated he spoke with Chair Baney, and she indicated if she had
been present, she would have voted the same as the other two Commissioners.
Mr. Groves said that staff will work with the applicant to prepare a decision
based on today's actions.
9. Before the Board was Consideration of Board Signature of Document No.
2014-431, a Decision regarding Thornburgh (Loyal Land, LLC).
Kevin Harrison recapped the purpose of today' s discussion and the history of
the issue. Laurie Craghead said the decision has been clarified and revised to
be more precise. Most changes were not substantive.
Page 2, next to the last paragraph, after "de novo", "only" was deleted.
Page 3, first paragraph, "found" was changed to "held" and the last part of the
sentence after "decision" was removed. Under "H", after "de novo", "only"
was deleted.
Page 7, under "Findings" after "C", "No objections or challenges to notice or
procedures were raised" was added.
Page 7, after "Scope of Proceeding" "A" "Findings", "could" was changed to
"did" in the last sentence.
Page 8, "Findings" after "Duration of Approvals, "only" was removed before
"question" .
Page 8, under "Initiation of Use", "A" "3", "Findings", "expressly" was
removed after Order 2014-010. In the same paragraph, last sentence, "finds"
was changed to "holds", and "as interpreted by this Board" was added.
Page 9, third paragraph, first sentence, "since" was added before the Board. In
the same sentence, after DCC 22.36.020(A)(3), the following was added: "it is
empowered and may do so now." "The Board further finds that there is no
legal obligation for the Board to accept LUBA's interpretation" was deleted.
Minutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
Page 7 of 11
The last sentence was deleted: "The CMP was initiated when a complete FMP
application was filed."
Also on Page 9, next paragraph, first sentence, "in which the actual construction
of the resort does not occur until after the FMP approval" was added. In the last
sentence, "both" and "and LUBA's interpretation' was deleted.
Page 10, under "Fault", "or premature applicability of the condition' was
deleted.
Page 10, under "Application ofDCC 22.36.020(A)(3), first sentence,
"substantive requirements" was deleted and "determinations that must be made
regarding this CMP" was added. In the last sentence, "that all three
requirements are met" was deleted.
Page 10, under "Construction is Not Required", first sentence, "these
particular" was changed to "this particular". "These" was changed to "this" in
two other sentences.
Page 19, first paragraph, "and necessary" was added after "relevant".
Page 19, under "cumulative findings", second paragraph, there was a math
error. It should say 22 conditions. The same applies in the footnote; "38"
should be deleted.
Under "Decision" on page 20, first sentence, "interpretations" is added after
"findings of fact", and "hold" replaces "concludes".
Commissioner Unger said he was glad the Board went through the long
deliberation process. He feels this is a three-part process that resorts should go
through. This reflects this situation and he hopes that LUBA understands the
Board's position and will support it.
Mr. Anderson noted that Chair Baney, who could not be present, would be
voting differently if she had been there. Her reasons for this are document in
the minutes of prior meetings.
UNGER: Move approval of the decision as amended.
DEBONE: Second.
Minutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
Page 8 of 11
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
Mr. Anderson acknowledged Kevin Harrison, who is retiring after long service
to the County. He will be sorely missed. Mr. Harrison noted that he has
worked with 17 Commissioners during that time.
Before the Board was Consideration of Approval of the Consent Agenda.
UNGER: Move approval of the Consent Agenda.
DEBONE: Second.
VOTE: UNGER: Yes.
DEB ONE: Vice Chair votes yes.
Consent Agenda Items
10. Board Signature of Document No. 2014-401, Option Agreement with Cascade
Divide Data Center for Property in Finley Butte Industrial Park, La Pine
11. Board Signature of Document No. 2014-409, Amending a Lease with the State
of Oregon Building Codes Division for County Space
12. Board Signature of Letters Appointing Mike Shirtc1iff, Lorie Weber, Charla
DeHate and Susan Keys to the Deschutes County Public Health Advisory
Board, through August 31, 2017
13. Approval of Minutes:
. Business Meetings of August 4 and 6, 2014
. Work Session of August 6, 2014
CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-H
COUNTY SERVICE DISTRICT
14. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the Extensionl4-H County Service District in the
Amount of $114.23.
UNGER: Move approval, subject to review.
DEBONE: Second.
Minutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
Page 9 of 11
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
15.Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for the 9-1-1 County Service District in the Amount of
$83,098.60.
UNGER: Move approval, subject to review.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
16. Before the Board was Consideration of Approval of Weekly Accounts
Payable Vouchers for Deschutes County in the Amount of $1,368,592.02.
UNGER: Move approval, subject to review.
DEBONE: Second.
VOTE: UNGER: Yes.
DEBONE: Vice Chair votes yes.
17. ADDITIONS TO THE AGENDA
None were offered.
Being no other items brought before the Board, the meeting adjourned at
11:05 a.m.
Minutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
Page 10 of 11
DATED this yj Day of q~ 2014 for the
Deschutes County Board of Commission'ers:
Tam~
Anthony DeBone, Vice Chair
ATTEST:
Alan Unger, Commissioner (£~~
Recording Secretary
Minutes of Board of Commissioner' Business Meeting Wednesday, August 13,2014
Page 11 of 11
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BOARD OF COMMISSIONERS' MEETING
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BOARD OF COMMISSIONERS' MEETING
REQUEST TO SPEAK
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HEARING PROCEDURES:
QUASI-JUDICIAL PUBLIC HEARING
• Timely notice of this hearing has been provided as required by ORS 197.763.
• Applicable criteria from the laws and regulations that apply to this application will
be verbally identified by staff at the outset of the hearing. In addition, they are
listed in the Staff Report, copies of which are available at this hearing, from the
Community Development Department, and on the County's website.
• The applicants have the burden of proving that they are entitled to the approval
requested.
• Testimony, arguments and evidence at this hearing must be directed toward the
applicable criteria, as well as toward any other criteria in the comprehensive land
use plan of the County or land use regulations which any person believes apply to
this decision.
• Failure on the part of any person to raise an issue, in person or by letter, with
sufficient specificity to afford this hearings body and parties to this proceeding an
opportunity to respond to the issue precludes appeal to the Land Use Board of
Appeals on that issue. Additionally, failure of the applicant to raise constitutional or
other issues relating to the approval with sufficient specificity to allow the Board to
respond to the issue precludes an action for damages in Circuit Court.
• The decision of the hearings body on this application will be based upon the record
before it, including as applicable, the Hearings Officer's decision, the Staff Report,
additional material within the record and the testimony and evidence presented at
this hearing.
• Any participant at this hearing may request that the hearing or record or both be
held open for an additional seven (7) days. If the request is granted, the hearings
body will identify a date and time certain for the continuance or open record period.
• Unless waived by the applicant, the hearings body will allow the applicant at least
seven (7) days after the record is closed to all other parties and participants to
submit final written arguments in support of the application. Final written argument
shall not include any new evidence.
Page 1 of 1 -PRELIMINARY STATEMENT FOR A QUASI-JUDICIAL PUBLIC
HEARING BEFORE THE DESCHUTES COUNTY BOARD OF COMMISSIONERS
HEARING PROCEDURE
• The Board's decision on this application will be based upon the record before the
Hearings Officer, the Hearings Officer's decision, the Staff Report and the
testimony and evidence presented at this hearing.
• The hearing will be conducted in the following order.
1. Staff will provide a brief report.
2. The applicant will present its testimony and evidence.
3. Opponents and proponents will testify and present evidence.
4. Other interested persons will then present testimony or evidence.
5. The applicant presents rebuttal testimony.
6. Staff will be afforded an opportunity to make any closing comments.
• e 1
Applicant: Sunriver Service District
.I. _
Request: Change plan designation and zoning from Sunriver
, Forest District to Sunriver Utility District, and a goal
exception to Goal 4, Forest Lands. ~
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Sunriver UUC
D Subject Site 4.28 acres
Sunr....rUUC
For.st District
Sunriver Utility Dist.
Zone Change
Fronl Suruiver Forest DlSlnct
10 Sunriver Utili ty District With
l lll1ited Use Combinin g Zone
Fire Training Facility
Proposed
Goal 4, Forest Lands
Exception Summary
• To ensure that the uses in the Sunriver Utility District
Zone on the approximate 4.28 acre site are limited in
nature and scope the site shall be subject to a Limited
Use CombininB Zone, which will limit the uses to a fire
traininBJacility and access road Jor the Sunriver Service
District and Sunriver Fire Department.
DCC 18.108.175
Utility / Limited Use Combining District
• A fire trainina]acility is permitted subject to the
applicable provisions of Dee 18.116 and 18.124.
Community Development Department
Planning Division Building Safety Divl.lon Environmental Soil. Division
P.O. Box 6005 117 NW Lafayette Avenue Bend, Oregon 97708-6005
(541)388-6575 FAX (541)385-1764
http://www.co.deschutes.or.us/cdd/
MEMORANDUM
DATE: July 15, 2014
TO: Board of County Commissioners
FROM: Will Groves, Senior Planner
RE: The Flight Shop and Aero Facilities Appeal/Hearings Officer's Decision (File
Nos. SP-13-7, A-14-2 and A-13-4).
Before the Board of County Commissioners (Board) is an appeal filed by The Flight Shop and
Aero Facilities (Appellant). The appeal was submitted in response to a Deschutes County
Hearings Officer's decision on remand from LUBA that a fueling station proposed by Leading
Edge Aviation Inc. (Applicant) at the Bend Airport complies with all applicable regulations. The
Board agreed to hear this matter on the record under Order No 2014-105 and extended the
record period under Order Number 2014-018. The record is closed as of July 9,2014.
REMAND FROM LUBA:
The remand from LUBA identified the scope of issues before the Hearings officer and now the
BOCC to as follows:
1) Whether the airport master plan includes any applicable standards or requirements
with respect to the proposed fuel storage facility, and
2) Whether the airport master plan precludes approval of a fueling station on the west
side of the runway in the proposed location.
The Hearings Officer found that the airport master plan (AMP) does not include any standards
and criteria applicable to the applicant's site plan, and that the AMP does not preclude approval
of the applicant's fueling station on the subject property. Staff notes that the AMP includes the
Airport Layout Plan (ALP), a depiction of the preferred alternative to airport development, as
exhibit 1.
The Appellant's notice of appeal describes several assignment of error in the Hearings Officer's
decision on remand. These are listed below in bold below, followed by a summary of the legal
argumentation presented to the Board. The Appellant argues that the Hearings Officer erred:
a. By finding that the Bend Municipal Airport (AMP) does not include any standards
and criteria applicable to the Applicant's site plan;
Quality 5eroices Perfonned with Pride
Hearings Officer: The Hearings Officer extensively reviewed language in the
Comprehensive Plan, TSP, AMP, and ALP and concluded that the AMP does not
include any standards and criteria applicable to the applicant's site plan.
Applicant: The applicant concurs with the Hearings Officer's findings, noting that
the airport master plan (AMP) is aspirational and is a "guide" as described in the
County Transportation System Plan (TSP). The Comprehensive Plan, of which
the AMP is a part, states that it is "not intended to be used to evaluate specific
project developments".
Appellant: Although the Comprehensive Plan states that it is not intended to be
used to evaluate specific development projects, that language is simply a
statement of general intent, and does not rule out that some portions of the
Comprehensive Plan might be made to apply as independent criteria, for
example, if an ordinance such as DCC 18.76.010 imposed it, or where the
Comprehensive Plan itself imposes another document such as the Airport Master
Plan as a planning document to be applied. The Transportation System Plan
incorporated in that Comprehensive Plan allots a specific function to the 2002
AMP update.
Staff Recommendation: Adopt the Hearing's Officers Findings on this issue
and include specific code interpretations as described below.
b. By finding that the AMP does not preclude approval of the Applicant's fueling
station on the subject property;
Hearings Officer: The AMP does not preclude approval of the applicant's
fueling station on the subject property.
Applicant: The AMP would only preclude the fueling station if it contained
relevant criteria. It does not.
Appellant: The LEA fuel station is not consistent with the AMP and does not
comply with it. The 2002 AMP update and its incorporated ALP designate future
fuel storage for the east side of the Airport, not the west side. The 2002 AMP and
ALP adopted by the County specifically designate a location on the east side of
the Airport for a new fuel station. It designates the subject property for the LEA
fuel station for small hangar space. The plain language of the 2002 AMP and
ALP rebut the Hearings Officer's conclusion that those documents allow for ad
hoc development that blatantly deviates from the AMP and ALP, such as the
Leading Edge application.
Staff Recommendation: Adopt the Hearing's Officers Findings on this issue
and include specific code interpretations as described below.
The remaining assignments of error discuss detailed points that are used to reach the
conclusions in (a) and (b), above.
File No.: A-14-2 (A-13-4 and SP-13-7) Page 2 of 5
c. By concluding that policy 16.2(h) of the Deschutes County Comprehensive Plan
and TSP should be interpreted to not prohibit development except as specifically
designated on the Airport Layout Plan;
Hearings Officer: Policy 16.2 encourages the county to adopt AMPs for the
county's public-use airports, and requires the county to designate on any such
plans "proposed airport facility relocations or expansions." It is not clear to what
extent Policy 16.2(h) applies to the applicant's private development proposal.
Policy 16.2(h) could be interpreted to apply only to relocations and expansions of
airport infrastructure and not to private development such as the applicant's
fueling station. The Hearings Officer found that this more limited interpretation is
consistent with the purpose of the ALP.
Applicant: Policy 16.2(h) is ambiguous. The Applicant requests that the Board
adopt the Hearings Officer's findings on this policy and expressly interpret policy
16.2(h) that private development does not "constitute and airport facility" in this
context. Also, that this policy does not require designation on the AMP or ALP
prior to approving otherwise compatible private development. The subsequent to
an ALP after private development occurs satisfies this policy since it does not
require the update before the private improvement occurs and is consistent with
the ALP acting as a guide for development that needs to be flexible to adapt to
changing market conditions.
Appellant: There is nothing in the TSP that would limit airport facilities to
runways, taxiways, and runway and taxiway service lighting, as found by the
Hearings Officer. The County is required to apply an airport master plan map to
development projects at the Bend airport. Whether Deschutes County has in fact
allowed private development to occur in deviation of the 2002 AMP update and
ALP is irrelevant. The Comprehensive Plan, AMP, and the AD zone ordinance
indicate a clear intent to use the adopted ALP map as a criterion to guide future
development, whether private or public.
Staff Recommendation: Policy 16.2(h) requires the County to, "Specifically
designate any proposed airport facility relocations or expansions within County
jurisdiction on an airport master plan or airport layout plan map, as amended."
Staff recommends that the Board: 1) interpret "airport facility relocations or
expansions" to apply to airport infrastructure elements provided by the airport
owner, in this case the City, and not to private development such as the
applicant's fueling station; and 2) interpret this policy as contemplating that the
ALP will be updated after development occurs thus functioning as an "as-built"
map.
d. By finding that Deschutes County has revised, or has approved revisions, of the
Airport Layout Plan several times since the 2002 version in order to reflect actual
development at the Airport, most recently in 2013 with the addition of the
Applicant's fueling station on the subject property;
Hearings Officer: The ALP has been revised by the city and county, and
approved by the FAA, several times since 2002 version in order to reflect actual
development at the airport, most recently in 2013 with the addition of the
applicant's fueling station on the subject property.
File No.: A-14-2 (A-13-4 and SP-13-7) Page 30f5
Applicant: Opponent is correct that the Hearings Officer made a harmless
misstatement. Although the City has updated the ALP several times and the FAA
has approved those updates, the last County approved ALP revision was in
2002.
Appellant: The Hearings Officer's finding that "the ALP has been revised by the
City and County, and approved by the FAA several times since 2002 version in
order to reflect actual development at the airport, most recently in 2013 with the
addition of the applicant's fueling station on the subject property," is simply
wrong. It is irrelevant whether the City of Bend or the FAA have approved
revisions, because Deschutes County hasn't.
Staff Recommendation: Correct the Hearings Officer's harmless error to say,
"While Deschutes County has not completed adoption of any revisions to the
ALP into the Comprehensive Plan since adopting the 2002 update, it is in the
process of adopting the 2013 update, which depicts the Applicant's fueling
station on the subject property".
e. By concluding to not consider the Airport Development Zone Purpose Statement
(DCC 18.76.010) in connection with the issues on remand, including whether the
AMP or any of its contents must be applied as an approval criterion because of
the purpose statement; and
Hearings Officer: The Hearings Officer did not address this issue.
Applicant: Recommends that the Board include a finding interpreting the
purpose statement as relating to consistency between the development code and
the Comprehensive Plan, AMP, and ALP not consistency between those
overarching planning documents and site-specific development. Furthermore, the
Board should not interpret the purpose statement as elevating aspirational
language in the identified planning documents to mandatory approval criteria.
Appellant: DCC 18.76.010 separately references the 2002 AMP update as a
plan for airport growth and is an indication of intent to apply and enforce the 2002
AMP and ALP for any development in the AD zone. By failing to address and
consider that code provision as an independent source for mandatory approval
criteria for the application, the Hearings Officer decision was in error.
Staff Recommendation: Make a Board finding that the language of the purpose
statement in DCC 18.76.010 is somewhat ambiguous and requires interpretation
to guide development review at the Bend Airport. Then, adopt the following
findings:
DCC 18.76.010 is intended to signify that the code language of Chapter 18.76 is
consistent with the planning goals and objectives outlined in the Comprehensive
Plan and the 1994 Airport Master Plan (as amended by a 2002 supplement) (the
"AMP"). The purpose statement in DCC 18.76.010 is not intended to establish
the Comprehensive Plan or the AMP as criteria for evaluating a specific
development proposal or to otherwise elevate the aspirational language
contained in those planning documents to mandatory approval criteria. Chapter
18.76 fully implements those planning documents as they relate to development
File No.: A-14-2 (A-13-4 and SP-13-7) Page 40f5
in the Airport Development Zone and there is no need for a consistency analysis
for individual development proposals except where otherwise expressly required
by the Code. In summary, the Board interprets DCC 18.76.010 as simply a
purpose statement and not and not as approval criteria for a development
proposal such as the Applicant's fuel facility.
f. By finding that the "AMP and ALP are intended to describe recommended airport
developments to meet identified needs and to accommodate development that
may not have been foreseen at the time the update was adopted".
Hearings Officer: The AMP and ALP are intended to describe recommended
airport improvements to meet identified needs and to accommodate development
that may not have been foreseen at the time the update was adopted -such as
the applicant's proposed fueling station.
Applicant: The AMP and ALP are "guiding documents" that offer
"recommendations" for meeting forecasted aviation demand. Accordingly, they
are not intended to provide site-specific approval criteria for airport development
such as the Applicant's fueling station. This is evident from the express language
of the AMP cited by the Hearings Officer. The AMP and ALP will continue to
serve their intended function of identifying goals and objectives for the airport that
in turn guide legislative code language.
Appellant: It is hard to imagine that an airport master plan and airport layout
plan that specifically designates and projects areas for future growth after careful
consideration of alternative plans would then undermine itself by
"accommodating future development" that is contrary to that plan, as the
hearings officer suggests. Rather than using the adopted 2002 AMP update and
ALP as the guiding document for airport planning, as required by the
Comprehensive plan and DCC 18.76.010, the Hearings Officer decision would
relegate that document to a meaningless guess as to future development, with
no planning function at all.
Staff Recommendation: Adopt the Hearings Officer's findings on this issue.
Attachments
1. Hearing Officer'S decision on Remand (File no. SP-13-7)
2. Arguments submitted by parties during this "on the record" appeal.
3. Summary matrix.
File No.: A-14-2 (A-13-4 and SP-13-7) Page 50f5
·
.
Issue
Has Deschutes
County revised or
approved revisions
of the Airport
Layout Plan several
times since the 2002
version in order to
reflect actual 4. development at the
Airport, most
recently in 2013
with the addition of
the Applicant's
fueling station on
the subject
property?
Information in Record
Hearings Officer: The ALP ha s been revis ed by the city a nd county, and
approved by the FAA, several times since 2002 version in order to reflect
actual development at the airport, most recentl y in 2013 with the addition of
the applicant's fueling station on the subject property.
Applicant: Opponent is correct th at the Hearings Officer made a misstatement
as to the versions adopted by the County but the error is ha rmless.
Appellant: The Hearings O fficer erred in finding that "the ALP has been
revised by the City and County, and appro ved by the FAA several times since
2002 version. It is irrelevant whether the City of Bend or the FAA have
appro ved revisions, because Deschutes County hasn't.
Board Options
a. Modify the Hearings
Officer 'S findings to
correct trus factual
error but find th a t the
error is a harmless
error.
b. Modify the Hearings
Officer's findings but
find that the error is
not harmless.
Sta ff C omment
St a ff Recommendation : Correct the He a rings Officer's harmless error to say, "While Deschutes County
has not completed adoption of any re visions to the ALP into the Comprehensive Pl an since adopting the
2002 update, it is in the process of adopting the 2013 update , wruch depicts the Applicant's fueling
station on the subject property".
Sample motion for BOCC: "Move that the BOCC find that while Deschutes County has not
completed adoption of any revisions to the ALP into the Comprehensive Plan since adopting the
2002 update, it is in the process of adopting the 2013 update, which depicts the Applicant's fueling
station on the subject property." Additionally, the Hearings Officer's findings regarding the
adoption of versions subsequent to the 2002 ALP was harmless error.
M us t the AMP or
a ny of its contents
be a p pli e d as a n
appr ova l criterion
5. b eca use of the
Airpo r t
Deve lopment Zone
Pur pose State men t
(DeC 18 .76.010 )?
Are the AMP and
ALP intended to
describe
recommended
airport
developments to
meet identified 6, needs and to
accommodate
development that
may not have been
foreseen at the time
the update was
adopted?
Hea ri ngs Officer: The Hearings Officer did not address trus issue.
Applicant: Recommends that thl.! Board include! a finding interpreting the
purpose statement as relating to consistency between the development code and
the Comp re hensive Plan, and, therefore , merely asp irational and not mandatory
approval criteria .
Appellan t: The language of OCC 18.76.010 applies the AM P as mandatory
criteri a because that zoning code provision purpose statement separately
references the 2002 AMP updatc as a plan for air-po n growt h and is an
ind ication of inten t to apply and enforce the 2002 AMP and ALP for any
de velo pment in th e AD zone.
Hearings Officer: The AMP and ALP are intended to describe recommended
airport improvements to meet identified needs and to acconunodate
development that may not have been foreseen at the time the update was
adopted -such as the applicant's proposed fueling station .
Applicant: The AMP and ALP are "guiding documents " that offer
"recommendations" for meeting forecasted aviation demand and are not
intended to provide site-specific approval criteria for airport development such
as the Applicant's fueling station.
Appellant: The Hearings Officers' interpretation could result in
"acconunodating future development" contrary to the AMP. Thus, the
Hearin gs Offi cer decision would relegate that the AMP to a meaningless guess
as to future development , with no planning function at all.
a .Ado pt Staffs
rec ommended
interpretation .
b. Adop t other fUldi ngs
and/or interpre ta tion .
a .Adopt Hearings
Officer 's findings,
with or without
modi fication .
b. Find that the
Hearings Officer
erred.
Sta lT Rec omm endation: Ma ke a Board findi ng that the lan guage of the pWllose statement in De e
18.76.0 lOis somewhat ambiguo us and requires interpreta ti on to guide development review at the Bend
A irpo rt. Then, adop t the follow in g fi ndings:
Sample motion for BOCe: "Mo\'e t hat th e BOe C fmd t hat D CC 18.76.010 is in tend ed to s ign ify
th at the. cod e langua ge of Chapt e r 18 .76 is con sist e n t with the pl a nning goa ls and objecti ve s
o u tl in ed in the Compre he nsi ve Pl an and th e 1994 Ai rport Master Pl a n (as am e nded b y a 2002
s uppleme nt) (the " AMP "). The purpose statem ent in DeC 18.76.010 is not intended to esta bli sh
the Compre h e nsive Plan or th e A MP as crite ri a for eval uating a sp ecifi c d evelopment pro p osal or
to ot h erwise elev ate t he a spiration a llanguage c ontai ned in those pl anning docu m ents to
ma n d atory a pproval criteria. Chapter 18.76 full y imple m en ts t bose planning d o cumen ts as they
r e late to d e \'elo pmen t In the Airport Development Zon e and th e re is no need fo r a consiste n cy
analys is for individua l d eve lopment proposals ex ce pt where oth e r wise ex press ly r equired by the
Code. In s ummary, t be Board interprets DCC 18.76.010 a s sim ply a purpose state m e nt a nd not
and not as a...PJ!I"o val crit eria for a devel~meDt proposa l such as tb e A.l!.I!.li ca nt's fu el faciU tv."
Staff Recommendation: Adopt the Hearings Officer's findings on this issue.
Sample motion for BOCC: "Move that the Board adopt the Hearings Officer's findings."
LEADING EDGE A VIA nON DECISION MATRIX
The remand from LUBA identified the scope of issues before the Hearings officer and now the BOCC to as follows :
I) Whether the airport master plan includes an y applicable standards or requirements with respect to the proposed fuel storage facility, and
2) Whether the airport master plan precludes approval of a fueling station on the west side of the runway in the proposed location.
The Appellant's notice of appeal describes several assignment of error in the Hearings Officer's decision on remand . These are summarized in the matrix below .
Information in Record Board Options S taff C o mmentIssue
Does the Deschutes
County
Comprehensive
Plan say that the
Bend Municipal
I. Airport Plan (AMP)
includes standards
and criteria
applicable to the
Applicant's site
plan?
Does the AMP
preclude a ppro\'al of
2. th e A ppli cant's
fueling station o n
th e s ubj ect p r ope r ty
S hould policy
16.2(h ) of the
Deschutes C ounty
Compre h e n sive Plan
a nd TS P b e
int erpreted to 3. prohibit
d evelopme nt except
as s p e cifically
d es ignated on the
Airport L ayout
Plan?
-
Hearings Officer: The Hearings concluded that the A1v1P does not include any
standards and criteria applic able to the applicant's site plan.
Applican t: The appl icant concurs with the Hearings Officer's findings a nd adds
th at that the A1v1P is aspirational and is a "guide" Also, the Comprehensive
Plan, , states that it is "not intended to be used to ev aluate specific project
developments" .
Appella nt: In this case, the Comp Plan imposes the A1v1P as standards and
criteria for all development at the airport and, thus , is applicable to the
Applicant's site plan.
Hearings O fficer : The A MP does not precl ude approval of the applicant's
fu eling station on the subj ect property.
Ap plicant: T he AMP would only preclude t he fuding station ifit contai ned
re levant c ri teria. It does nol.
Appe ll ant: T he LEA fu el station is not consistent with the AMP and docs not
comply wi th it.
H earings Officer: It is not clear to what extent Policy 16.2(h) ap p lies to the
applicant's private development p roposal. The Hearings Officer found tho t
Po licy 16.2(h ) could b e interpreted to app ly on ly to relocatio ns and e xpansions
of a irport infrastructure and not to private development such as the ap plicant's
fu eling s talion .
Applicant: Policy l6.2(h) is ambi guous. The A pp licant requests that the
Board adopt the Hearing s Officer's ti nd ings on this po licy and expressly
interpret po l icy 16 .2 (h ) that private deve lopment does not "constitute an airp0l1
faci lity" in this context. T he A pp licant al so th at the Board fin d th at this policy
does no t require des ig nation on the AMP or ALP prior to approving otherwise
compatib le private development.
Appe ll a nt: T here is no th ing in t he TS P that would li mi t a irpo rt facili ties to
ru nways, taxiways, and runway and tax iway service li g hting, as found b y the
Hearings Officer. The C omp re hensive Plan, AMP. and the AD zone ordinance
in dicate a clear intent to use the adopted ALP ma p as a criterion to guide future
development. w hether private or public.
a. Adopt Hearings
Officer's findings,
with or without
modification.
b. Find that the
Hearings Officer
erred and AMP does
have standards and
criteria applicable to
the Applicant 's site
plan .
a.Adopt Hearings
O ffi c er"s findings.
w ith or w ithout
m odification .
b.Find that Hearings
Ofticer erred and the
AMP p recl udes
fueli ng o n the subject
property.
a. Adopt Heari ngs
O fficer 's fin d ings,
and Staffs
recommended
i nte rpreta tion.
b. Find that the
Hearings Ofticer
erred .
-
-, ~
Staff Recommendation: Adopt the Hearing 's Officers Findings on this issue and include specific code
interpretations as described below.
Sample motion for BOCC : "Move that the Board adopt the Hearings Officer's findings."
Staff Recom mendation: A dopt the Heari ng's O ffi cers F indings on this issue and include specific code
interpret ations as described below.
Sample moti o n for BOCC: " Move tb a t the Board adopt the H earings O ffic er's findings."
S.taff Rec o.~mendat io~: Policy l 6 .2 (h) requires the County to. "Specifically d esignate any p ro posed
a irport facility relbcatlOns or expans ions within C ounty j urisdic tion on an ai rpo rt master p la n or airport
layout plan map. as amended." Staff recommends th a t the Bo ard Provide an interpretation through the
following motion.
Sample motio n for BOCC: "M ove that the BOCC: I) interpret "airport fa cility relocations or
ex pans io n s" to apply to airp ort infrastruct ure cle ments provided by the airport owner, in this case
t h e C i ty, and n ot to priva t e development such as the applicant's fuelin g sta tion; and 2) interpret
this policy as co nte mplating that the ALP will be updated after development occurs' thusf . ' ,ufi Ctioning as a n "as-built" m a p."
-
-, -,
J .. -
I
Page 1 of 20 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS, A-14-1,
DC Document No. 2014-431
For Recording Stamp Only
DECISION OF THE BOARD OF COUNTY COMMISSIONERS
FOR DESCHUTES COUNTY
FILE NUMBER: A-14-1
(Related File Nos.: A-13-8, DR-11-8)
APPLICANT/APPELLANT: Loyal Land, LLC
PROPERTY OWNER: Loyal Land, LLC (tax lots 5000, 5001, 5002, 7700, 7701,
7800, 7900)
80908 Hermitage
La Quinta, CA 92253-6939
Agnes DeLashmutt (tax lot 8000)
4048 NW Xavier
Redmond, OR 97756
REQUEST: Appeal of Decision of County Hearings Officer denying a
declaratory ruling that the use approved by the
Thornburgh Resort Conceptual Master Plan (CMP) has
been initiated.
PROPERTY: County Assessor’s Map 15-12, tax lots 5000, 5001, 5002,
7700, 7701, 7800, 7900, 8000
STAFF CONTACT: Kevin Harrison, Principal Planner
HEARING DATE: June 4, 2014
I. SUMMARY OF DECISION:
In this decision, the Board of County Commissioners (“Board”) is asked to decide an appeal by
Loyal Land, LLC ("Loyal") of the March 17, 2014 decision of the County Hearings Officer
("Hearings Officer’s Decision") on Loyal's request for a declaratory ruling that the use approved
by the Thornburgh Resort CMP has been initiated under Deschutes County Code ("DCC")
22.36.020.A. The Hearings Officer found that the CMP had not been initiated. By Order No.
2040-010 dated April 9, 2014, the Board agreed to hear Loyal's appeal de novo only on the issue
of whether or not the CMP was initiated pursuant to DCC 22.36.020(A)(3). After full
consideration of the arguments, admissible evidence and administrative record in this matter, the
Board grants Loyal's appeal and finds that the CMP has been initiated under DCC
22.36.020(A)(3).
REVIEWED
______________
LEGAL COUNSEL
Page 2 of 20 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS, A-14-1,
DC Document No. 2014-431
II. APPLICABLE CRITERIA:
The following standards and criteria from the DCC are applicable to this appeal:
Chapter 22.32 - Appeals
o Section 22.32.010, Who May Appeal
o Section 22.32.015, Filing Appeals
o Section 22.32.020, Notice of Appeal
o Section 22.32.024, Transcript Requirement
o Section 22.32.027, Scope of Review
o Section 22.32.030, Hearing on Appeal
Chapter 22.34 – Proceedings on Remand
o Section 22.34.020, Hearings Body
o Section 22.34.030, Notice and Hearings Requirements
o Section 22.34.040, Scope of Proceeding
Chapter 22.36 – Limitations on Approvals
o Section 22.36.010, Expiration of Approval
o Section 22.36.020, Initiation of Use (subsection A.3 only)
III. FINDINGS OF FACT:
The Board adopts as its findings of fact the findings that were made by the Hearings Officer in
Sections II (A) through (K) of the Hearings Officer’s Decision, except as modified below.
F. PROCEDURAL HISTORY: The procedural history is amended to add the following:
The January 8, 2013 decision of LUBA in LUBA Case No. 2012-42 was appealed by
Nunzie Gould ("opponent") to the Oregon Court of Appeals, which issued an order on
June 12, 2013 affirming LUBA's decision without written opinion.
Pursuant to ORS 215.435(2)(b), Loyal granted extensions of the 90-day period for
issuance of a final local decision on remand, so that the County's final decision now is
required no later than August 20, 2014.
The Hearings Officer issued the Hearings Officer’s Decision on March 17, 2014 denying
the requested declaratory ruling application, and which was mailed on March 18, 2014.
Loyal timely filed an application to appeal the Hearings Officer’s Decision to the Board
on March 31, 2014. The Board held a work session with Staff on the appeal application
on April 2, 2014. By Order No. 2040-010 dated April 9, 2014, the Board agreed to hear
Loyal's appeal de novo only on the issue of whether or not the CMP was initiated
pursuant to DCC 22.36.020(A)(3).
The Board held a public hearing on the appeal on June 4, 2014 following a Notice of
Public Hearing sent April 11, 2014. The only parties to appear at the hearing were Loyal
and opponent. At the hearing, the written record was held open through June 25, 2014
for additional argument and evidence from Loyal and opponent. Loyal submitted final
Page 3 of 20 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS, A-14-1,
DC Document No. 2014-431
written argument on June 25, 2014 and the record closed on that date. The Board then
held a work session on June 30, 2014 and public deliberations on July 2, 2014 and July 7,
2014 concerning the appeal. On July 7, 2014, the Board voted 2-1 to overturn the
Hearings Officer’s Decision and heldfound that the CMP had been initiated pursuant to
DCC 22.36.020(A)(3). The Board directed Staff to prepare this written decision. taking
into account the Board’s statements at the deliberations for their decision.
H. REQUEST: Loyal appealed the Hearings Officer’s Decision to the Board by Notice of
Appeal filed March 31, 2014, and by Order No. 2040-010 dated April 9, 2014, the Board
agreed to hear Loyal's appeal de novo only on the issue of whether or not the CMP was
initiated pursuant to DCC 22.36.020(A)(3).
J. PUBLIC NOTICE AND COMMENTS: The description of public notice and
comments is amended to reflect the additional public notice given of the appeal hearing
held on June 4, 2014, as described above in the additional findings of fact regarding
procedural history.
IV. FINDINGS OF FACT AND CONCLUSION OF LAW
SPECIFIC LEGAL ISSUES
CHAPTER 22.32 APPEALS
22.32.010.Who may appeal.
A. The following may file an appeal:
1. A party;
2. In the case of an appeal of an administrative decision without prior notice, a person
entitled to notice, a person adversely affected or aggrieved by the administrative
decision, or any other person who has filed comments on the application with the
Planning Division; and
3. A person entitled to notice and to whom no notice was mailed. A person who, after
such notices were mailed, purchases property to be burdened by a solar access
permit shall be considered a person to whom notice was to have been mailed; and
4. A city, concerning an application within the urban area for that city, whether or not
the city achieved party status during the proceeding.
B. A person to whom notice is mailed is deemed notified even if notice is not received.
FINDINGS: This appeal was filed by Loyal, the applicant in the underlying declaratory ruling
proceedings. As a party, Loyal was eligible to appeal under DCC 22.32.010.A.1.
22.32.015. Filing appeals.
A. To file an appeal, an appellant must file a completed notice of appeal on a form
prescribed by the Planning Division and an appeal fee.
B. Unless a request for reconsideration has been filed, the notice of appeal and appeal fee
must be received at the offices of the Deschutes County Community Development
Department no later than 5:00 PM on the twelfth day following mailing of the decision.
Page 4 of 20 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS, A-14-1,
DC Document No. 2014-431
If a decision has been modified on reconsideration, an appeal must be filed no later
than 5:00 PM on the twelfth day following mailing of the decision as modified. Notices
of Appeals may not be received by facsimile machine.
C If the Board of County Commissioners is the Hearings Body and the Board declines
review, a portion of the appeal fee may be refunded. The amount of any refund will
depend upon the actual costs incurred by the County in reviewing the appeal. When the
Board declines review and the decision is subsequently appealed to LUBA, the appeal
fee may be applied toward the cost of preparing a transcript of the lower Hearings
Body’s decision.
D. The appeal fee shall be paid by cash or check or money order, except that local, state or
federal governmental agencies may supply a purchase order at the time of filing.
22.32.020. Notice of Appeal.
Every notice of appeal shall include:
A. A statement raising any issue relied upon for appeal with sufficient specificity to afford
the Hearings Body an adequate opportunity to respond to and resolve each issue in
dispute.
B. If the Board of County Commissioners is the Hearings Body, a request for review by
the Board stating the reasons why the Board should review the lower Hearings Body's
decision.
C. If the Board of County Commissioners is the Hearings Body and de novo review is
desired, a request for de novo review by the Board stating the reasons why the Board
should provide de novo review as provided in DCC 22.32.030.
FINDINGS: On March 31, 2014, Loyal filed a completed notice of appeal on the Planning
Department's prescribed form which contained the information required by DCC 22.32.020, and
paid the appeal fee. This was within twelve days after mailing of the Hearings Officer’s
Decision on March 18, 2014. The appeal therefore met the requirements of DCC 22.32.015 and
22.32.020.
22.32.024. Transcript Requirement.
A. Except as otherwise provided in DCC 22.32.024, appellants shall provide a complete
transcript of any hearing appealed from, from recorded magnetic tapes provided by the
Planning Division.
B. Appellants shall submit to the Planning Division the transcript no later than the close of
the day five days prior to the date set for a de novo appeal hearing or, in on-the-record
appeals, the date set for receipt of written arguments. Unless excused under DCC
22.32.024, an appellant's failure to provide a transcript shall cause the Board to decline to
consider the appellant's appeal further and shall, upon notice mailed to the parties, cause
the lower Hearings Body's decision to become final.
C. An appellant shall be excused from providing a complete transcript if appellant was
prevented from complying by: (1) the inability of the Planning Division to supply
appellant with a magnetic tape or tapes of the prior proceeding; or (2) defects on the
magnetic tape or tapes of the prior proceeding that make it not reasonably possible for
Page 5 of 20 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS, A-14-1,
DC Document No. 2014-431
applicant to supply a transcript. Appellants shall comply with the maximum extent
reasonably and practicably possible.
FINDINGS: At least five days before the June 4, 2014 hearing, Loyal submitted a transcript of
the Hearings Officer's February 4, 2014 hearing on remand, as required by DCC 22.32.024.
22.32.027. Scope of Review.
A. Before Hearings Officer or Planning Commission. The review on appeal before the
Hearings Officer or Planning Commission shall be de novo.
FINDINGS: The above provision is not applicable to this appeal.
B. Before the Board.
1. Review before the Board, if accepted, shall be on the record except as otherwise
provided for in DCC 22.32.027.
2. The Board may grant an appellant's request for a de novo review at its discretion
after consideration of the following factors:
a. Whether hearing the application de novo could cause the 150-day time limit to be
exceeded; and
b. If the magnetic tape of the hearing below, or a portion thereof, is unavailable due
to a malfunctioning of the recording device during that hearing, whether review
on the record would be hampered by the absence of a transcript of all or a portion
of the hearing below; or
c. Whether the substantial rights of the parties would be significantly prejudiced
without de novo review and it does not appear that the request is necessitated by
failure of the appellant to present evidence that was available at the time of the
previous review; or
d. Whether in its sole judgment a de novo hearing is necessary to fully and properly
evaluate a significant policy issue relevant to the proposed land use action.
For the purposes of DCC 22.32.027, if an applicant is an appellant, factor DCC
22.32.027(B)(2)(a) shall not weigh against the appellant's request if the applicant
has submitted with its notice of appeal written consent on a form approved by the
County to restart the 150-day time clock as of the date of the acceptance of
applicant's appeal.
3. Notwithstanding DCC 22.32.027(B)(2), the Board may decide on its own to hear a
timely filed appeal de novo.
4. The Board may, at its discretion, determine that it will limit the issues on appeal to
those listed in an appellant's notice of appeal or to one or more specific issues from
among those listed on an applicant's notice of appeal.
FINDINGS: In Order 2014-010, the Board granted Loyal's request for a de novo hearing
pursuant to DCC 22.32.027.B.3. The Board specifically found that the appeal presented a
significant County Code interpretation issue related to expiration and initiation of conceptual
master plans for destination resorts, and a de novo hearing was necessary to fully and properly
evaluate the code interpretation issue. The Board exercised its discretion under DCC
Page 6 of 20 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS, A-14-1,
DC Document No. 2014-431
22.32.027.B.4 to limit the appeal specifically to whether or not the CMP was initiated under
DCC 22.36.020(A)(3).
22.32.030. Hearing on Appeal.
A. The appellant and all other parties to the decision below shall be mailed notice of the
hearing on appeal at least 10 days prior to any de novo hearing or deadline for
submission of written arguments.
B. Except as otherwise provided in DCC 22.32, the appeal shall be heard as provided in
DCC 22.24. The applicant shall proceed first in all de novo appeals.
C. The order of Hearings Body shall be as provided in DCC 22.24.020.
D. The record of the proceeding from which appeal is taken shall be a part of the record on
appeal.
E. The record for a review on the record shall consist of the following:
1. A written transcript of any prior hearing;
2. All written and graphic materials that were part of the record below;
3. The Hearings Body decision appealed from;
4. Written arguments, based upon the record developed below, submitted by any party
to the decision;
5. Written comments submitted by the Planning Commission or individual planning
commissioners, based upon the record developed below; and
6. A staff report and staff comment based on the record.
No oral evidence, argument or comment other than staff comment based on the
record shall be taken. The Board shall not consider any new factual information.
FINDINGS: Notice of the June 4, 2014 appeal hearing was mailed on April 11, 2014, more
than 10 days prior to the hearing. The hearing was conducted as provided in DCC Chapters
22.24 and 22.32. Because the appeal was heard de novo, the Board considered the record
submitted to LUBA and additional factual evidence submitted by the parties and specifically
finds that all additional evidence submitted by the parties to the Hearings Officer and this Board
is admitted into the record on appeal.
CHAPTER 22.34 PROCEEDINGS ON REMAND
22.34.020. Hearings Body.
The Hearings Body for a remanded or withdrawn decision shall be the Hearings Body
from which the appeal to LUBA was taken, except that in voluntary or stipulated remands,
the Board may decide that it will hear the case on remand. If the remand is to the Hearings
Officer, the Hearings Officer's decision may be appealed under DCC Title 22 to the Board,
subject to the limitations set forth herein.
FINDINGS: The decision of the Hearings Officer following remand from LUBA has been
appealed to this Board under DCC Title 22, as provided in DCC 22.34.020.
22.34.030. Notice and Hearings Requirements.
A. The County shall conduct a hearing on any remanded or withdrawn decision, the scope
of which shall be determined in accordance with the applicable provisions of DCC 22.34
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and state law. Unless state law requires otherwise, only those persons who were parties to
the proceedings before the County shall be entitled to notice and be entitled to participate
in any hearing on remand.
B. The hearing procedures shall comply with the minimum requirements of state law and
due process for hearings on remand and need comply with the requirements of DCC
22.24 only to the extent that such procedures are applicable to remand proceedings under
state law.
C. A final decision shall be made within 90 days of the date the remand order becomes
effective.
FINDINGS: The hearing on appeal was conducted in accordance with the applicable provisions
of DCC Chapters 22.24 and 22.34 and the requirements of due process and state law. All parties
to the County's proceedings on Loyal's application prior to remand were given adequate notice
of, and were allowed to participate in, the remand and on appeal thereof. No objections or
challenges to notice or procedures were raised. A final decision is being made within 90 days of
the date the remand order became effective, as extended by Loyal pursuant to ORS
215.435(2)(b).
22.34.040. Scope of Proceeding.
A. On remand, the Hearings Body shall review those issues that LUBA or the Court of
Appeals required to be addressed. In addition, the Board shall have the discretion to
reopen the record in instances in which it deems it to be appropriate.
FINDINGS: The Board agreed to hear the appeal de novo for the reasons set forth in the
findings above with respect to DCC 22.32.027. For the same reasons, the Board exercised its
discretion to reopen the record in appropriate instances under DCC 22.34.040(A). When
accepting review on DCC 22.36.020(A)(3), the Board determined and now finds that its review
was limited to that code provision because that was the only issue remanded by LUBA. All
other applicable code provisions were either resolved by LUBA or not appealed. Therefore, the
Board concurs with the Hearings Officer’s findings regarding the case law analysis on Page 9 of
her decision in A-13-8 and, as a result, didcould not hear those issues.
B. At the Board's discretion, a remanded application for a land use permit may be modified
to address issues involved in the remand or withdrawal to the extent that such
modifications would not substantially alter the proposal and would not have a
significantly greater impact on surrounding neighbors. Any greater modification would
require a new application.
FINDINGS: The application was not modified. Thus, this provision is not applicable.
C. If additional testimony is required to comply with the remand, parties may raise new,
unresolved issues that relate to new evidence directed toward the issue on remand.
Other issues that were resolved by the LUBA appeal or that were not appealed shall be
deemed to be waived and may not be reopened.
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FINDINGS: None of the other provisions under DCC 22.36.020(A) were appealed to LUBA
nor do they relate to the issue that LUBA remanded, which was whether or not the CMP was
initiated per DCC 22.36.020(A)(3). Because this provision does not allow a hearing on remand
on issues not appealed to LUBA or unrelated to the remanded issue, the Board interprets this
code provision as preventing it from applying any other criteria other than DCC 22.36.020(A)(3).
The Board found, however, additional testimony on the remanded issue was necessary in order to
fully understand the issue and render a decision. Therefore, the Board chose to hear the matter
de novo but only on the issue remanded by LUBA.
CHAPTER 22.36 – LIMITATIONS ON APPROVALS
22.36.010. Expiration of Approval.
B. Duration of Approvals
1. Except as otherwise provided under DCC 22.36.010 or under applicable zoning
ordinance provisions, a land use permit is void two years after the date the
discretionary decision becomes final if the use approved in the permit is not
initiated within that time period.
FINDINGS: It was previously determined by LUBA in this matter that the CMP expired on
November 18, 2011 if not initiated by that date. That ruling was not appealed and is therefore
final. Accordingly, the only question before this Board on appeal under DCC Chapter 22.36 is
whether or not the CMP was initiated prior to November 18, 2011.
22.36.020. Initiation of Use.
A. For the purposes of DCC 22.36.020, development action undertaken under a land use
approval described in DCC 22.36.010, has been "initiated" if it is determined that:
…
(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.
FINDINGS: Order 2014-010 expressly limited this appeal to a determination of whether or not
the Hearings Officer’s Decision is correct that the CMP was not initiated pursuant to DCC
22.36.020(A)(3) prior to November 18, 2011. Based on the findings of fact and conclusions of
law set forth below, the Board overturns the Hearings Officer’s Decision on that conclusion and
holdsfinds that the CMP was initiated pursuant to DCC 22.36.020(A)(3) – as interpreted by this
Board - prior to November 18, 2011.
Board's Right to Independently Interpret the DCC
As an initial matter, the Board first considered the permissible scope of its interpretation of DCC
22.36.020(A)(3). In the first decision on Loyal's application dated April 12, 2012, prior to the
LUBA appeal, the Hearings Officer found that for purposes of DCC 22.36.020(A)(3), not all
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conditions of approval of the CMP were relevant to determining whether or not the CMP was
initiated. Rather, the Hearings Officer found that only those conditions that required compliance
before final master plan (FMP) approval or concurrently with a FMP application were relevant to
whether or not the CMP was initiated (a total of 16 conditions).
After the Board declined to hear an appeal of that decision, opponent appealed the Hearings
Officer's decision to LUBA, which interpreted DCC 22.36.020(A)(3) to require consideration of
all the conditions of approval, not just those the Hearings Officer found relevant. Over Loyal's
objection, the Hearings Officer applied LUBA's interpretation on remand. In this appeal, Loyal
argued that the Board, as the ultimate arbiter of the meaning of the DCC, can and should adopt
an interpretation of DCC 22.36.020(A)(3) that differs from the interpretation given by LUBA in
its January 8, 2013 decision and applied by the Hearings Officer in the Hearings Officer’s
Decision. Opponent, on the other hand, argued that the Board is bound by LUBA's
interpretation.
The Board agrees with Loyal, to an extent. The Board finds that interpretation of the DCC is
ultimately the responsibility of the Board, and since the Board has not previously interpreted
DCC 22.36.020(A)(3) it is empowered and may do so now. The Board further finds that there is
no legal obligation for the Board to accept LUBA's interpretation. The Board finds that the CMP
is the "framework" of a destination resort approval under DCC 18.113.050, and ultimately any
development under a destination resort approval requires completion of all three steps of the
permitting process under DCC 18.113.040. None of the three steps is elevated in importance
over the others; they are all of equal importance in developing a destination resort under DCC
Chapter 18.113. Approval of a CMP alone does not authorize any construction on the land
subject to the CMP; all it authorizes is the right of the applicant to proceed to the FMP stage of
the process. The FMP then incorporates all the requirements of the CMP and becomes the
guiding approval document for the project pursuant to DCC 18.113.040.B. The CMP was
initiated when a complete FMP application was filed.
Therefore, in light of that three-step process in which the actual construction of the resort does
not occur until after the FMP approval, the Board interprets the CMP conditions that were not
completed by November 18, 2011 such that the failure was not the fault of the applicant. The
Board finds this despite the CMP conditions not having been written “as notices of future
conditions of approval” as LUBA would have preferred, Thus, the CMP is initiated under both
the Board's interpretation and LUBA's interpretation of DCC 22.36.020(A)(3).
Other Preliminary Findings
The Board considered Loyal's argument that the terms "exercise" and "compliance" as used in
DCC 22.36.020(A)(3) have different meanings. The terms were used interchangeably in the
Hearings Officer’s Decision, and opponent argued that they have the same meaning. The Board
rejects Loyal's argument and finds that as used in DCC 22.36.020(A)(3), the words have the
same meaning.
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The definitions applied in the Hearings Officer’s Decision to the terms "substantial exercise" and
"fault" were not challenged on appeal, and the Board agrees with and adopts the definitions
given by the Hearings Officer. Specifically:
"Substantial exercise" of a condition of approval pursuant to DCC 22.36.020(A)(3)
means performing or carrying out the condition of approval to a significant degree but not
completely;
"Substantial exercise" of the conditions of approval pursuant to DCC 22.36.020(A)(3)
requires an examination of the conditions viewed as a whole. In order to view the
conditions as a whole, however, the Board agrees with LUBA that the Board must
initially conduct an examination of whether or not each individual condition has 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.” (Gould v.
Deschutes County, LUBA No. 2012-042 at 20) Substantial exercise of the conditions can
exist, however, even if some of the conditions have not been substantially or fully
exercised and perhaps have not been exercised at all. Moreover, "some" of the conditions
does not necessarily mean a majority of the conditions or some other specific number or
percentage, but instead is determined on a case-by-case basis; and
"Fault" as used in DCC 22.36.020(A)(3) means 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, or premature applicability of the condition.
The original developer of the Thornburgh Resort was Thornburgh Resort Company, LLC. The
current applicant, Loyal, acquired its interest in the project by foreclosure on August 30, 2011.
For purposes of evaluating the acts or omissions of the "applicant" under DCC 22.36.020(A)(3)
in relation to the Thornburgh project, the Board finds that the acts or omissions of Thornburgh
Resort Company, LLC are imputed to Loyal.
Application of DCC 22.36.020(A)(3)
The Board finds that DCC 22.36.020(A)(3) has three substantive requirementsdeterminations
that must be made regarding this CMP: (1) that construction is not required by the CMP; (2) that
the conditions of approval of the CMP have been substantially exercised when viewed as a
whole; and (3) any failure to fully comply with the conditions of the CMP is not the fault of the
applicant. The Board finds that all three requirements are met , as follows:
Construction is Not Required
As noted above, the Board finds that thise particular CMP, standing alone, does not authorize or
require construction. Rather, any construction of a destination resort on land subject to thise
CMP cannot occur until (at the earliest) the second and third steps of the three-step destination
resort process under DCC 18.113.040 have occurred – approval of a final master plan and either
a site plan review application or a tentative plat. Thus, construction was not required by thise
CMP.
Substantial Exercise / Failure to Fully Comply is Not the Fault of the Applicant
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The Board finds that the CMP has conditions numbered to 38, but condition 14 has five parts.
Viewing the five parts of condition 14 as separate conditions, the CMP has 42 conditions (37
stand-alone conditions + 5 conditions in condition 14 = 42 conditions). Based on its review of
the evidence in the record, and applying the definitions of "substantial exercise" and "fault"
adopted above, the Board makes the findings set forth below as to each condition, followed by
cumulative findings applying the second and third requirements of DCC 22.36.020(A)(3).
Where the Board finds below that the failure to substantially comply is not the fault of the
applicant, that finding is based on the Board’s finding that those conditions have an implied
contingency that is unique to the destination resort approval process.
Condition 1
The Hearings Officer’s finding in A-13-8 regarding this condition was not challenged in this
appeal. Therefore, the Board agrees with and adopts the finding of the Hearings Officer in the
Hearings Officer’s Decision that the applicant fully complied with condition 1 prior to the
November 18, 2011 deadline.
Condition 2
The Board finds that condition 2 was not substantially exercised nor was it fully complied with
by the November 18, 2011 deadline. The Board further finds that full compliance with condition
2 cannot occur until there is a final, approved FMP for the project, and that contingency has not
yet occurred. The Board further finds that the failure of the applicant to fully comply with the
condition is not the applicant's fault for that reason and for the reasons explained below under the
heading "Cumulative Findings – Failure to Fully Comply is Not the Fault of the Applicant."
Condition 3
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 4
The Board finds that condition 4 requiring improvement of secondary emergency ingress/access
roads across BLM road land to certain standards was not substantially exercised prior to the
November 18, 2011 deadline. Although the applicant argues that the road built across BLM land
to the north is the road required by this condition, the Board finds the opponents’ argument
regarding this road to be persuasive such that there is insufficient evidence at this time that the
road built is the one that would meet this condition. Thus, the Board further finds that condition
4 was not fully complied with by November 18, 2011. The Board further finds that full
compliance with condition 4 cannot occur until there is a final, approved FMP for the project,
and that contingency has not yet occurred. The Board further finds that the failure to fully
comply with the condition is not the applicant's fault for that reason and for the reasons
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explained below under the heading "Cumulative Findings – Failure to Fully Comply is Not the
Fault of the Applicant."
Condition 5
The Board finds that condition 5 was not substantially exercised nor was it fully complied with
by the November 18, 2011 deadline. The Board further finds that full compliance with condition
5 cannot occur until there is a final, approved FMP for the project, and that contingency has not
yet occurred. The Board further finds that the failure fully comply with the condition is not the
applicant's fault for that reason and for the reasons explained below under the heading
"Cumulative Findings – Failure to Fully Comply is Not the Fault of the Applicant."
Condition 6
The Board finds that condition 6 was not substantially exercised nor was it fully complied with
by the November 18, 2011 deadline. The Board further finds that full compliance with condition
6 cannot occur until there is a final, approved FMP for the project, and that contingency has not
yet occurred. The Board further finds that the failure to fully comply with the condition is not
the applicant's fault for that reason and for the reasons explained below under the heading
"Cumulative Findings – Failure to Fully Comply is Not the Fault of the Applicant."
Condition 7
The Board finds that condition 7 was not substantially exercised nor was it fully complied with
by the November 18, 2011 deadline. The Board further finds that full compliance with condition
7 cannot occur until there is a final, approved FMP for the project, and that contingency has not
yet occurred. The Board further finds that the failure to fully comply with the condition is not
the applicant's fault for that reason and for the reasons explained below under the heading
"Cumulative Findings – Failure to Fully Comply is Not the Fault of the Applicant."
Condition 8
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 9
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 10
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In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 11
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 12
The Board finds that condition 12 was not substantially exercised nor fully complied with by the
November 18, 2011 deadline. The Board further finds that full compliance with condition 12
cannot occur until there is a final, approved FMP for the project, and that contingency has not yet
occurred. The Board further finds that the failure to fully comply with the condition is not the
applicant's fault for that reason and for the reasons explained below under the heading
"Cumulative Findings – Failure to Fully Comply is Not the Fault of the Applicant."
Condition 13
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 14A
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 14B
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 14C
The Board finds that condition 14C was not substantially exercised nor was it fully complied
with by the November 18, 2011 deadline. The Board further finds that full compliance with
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condition 14C cannot occur until there is a final, approved FMP for the project, and that
contingency has not yet occurred. The Board further finds that the failure to fully comply with
this condition is not the applicant's fault for that reason and for the reasons explained below
under the heading "Cumulative Findings – Failure to Fully Comply is Not the Fault of the
Applicant."
Condition 14D
The Board finds that condition 14D was not substantially exercised nor was it fully complied
with by the November 18, 2011 deadline. The Board further finds that full compliance with
condition 14D cannot occur until there is a final, approved FMP for the project, and that
contingency has not yet occurred. The Board further finds that the failure to fully comply with
this condition is not the applicant's fault for that reason and for the reasons explained below
under the heading "Cumulative Findings – Failure to Fully Comply is Not the Fault of the
Applicant."
Condition 14E
The Hearings Officer’s finding in A-13-8 regarding this condition was not challenged in this
appeal. Therefore, the Board agrees with and adopts the finding of the Hearings Officer in the
Hearings Officer’s Decision that the applicant fully complied with condition 14E prior to
November 18, 2011.
Condition 15
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 16
The Board finds that condition 16 has not been substantially exercised nor was it fully complied
with by the November 18, 2011 deadline. The Board further finds that full compliance with
condition 16 cannot occur until there is a final, approved FMP for the project, and that
contingency has not yet occurred. The Board further finds that the failure to fully comply with
this condition is not the applicant's fault for that reason and for the reasons explained below
under the heading "Cumulative Findings – Failure to Fully Comply is Not the Fault of the
Applicant."
Condition 17
The Board finds that condition 17 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 17 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
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for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 18
The Board finds that condition 18 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 18 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 19
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 20
The Board finds that condition 20 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 20 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 21
The Board finds that condition 21 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 21 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 22
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 23
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Although the finding was not challenged in this appeal, the Board agrees with and adopts the
finding of the Hearings Officer in the Hearings Officer’s Decision that the applicant fully
complied with condition 23 prior to November 18, 2011. The Board further finds that because
the condition was fully complied with, it was also substantially exercised. The Board further
finds that because the condition was fully complied with, no evaluation of fault is required.
Condition 24
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 25
The Board finds that condition 25 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 25 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 26
The Board finds that condition 26 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 26 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 27
The Board finds that condition 27 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 27 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 28
The Board finds that condition 28 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 28 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
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for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 29
The Board finds that condition 29 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 29 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 30
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 31
The Board finds that condition 31 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 31 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 32
Although the finding was not challenged in this appeal, the Board agrees with and adopts the
finding of the Hearings Officer in the Hearings Officer’s Decision that the applicant fully
complied with condition 32 prior to November 18, 2011. The Board further finds that because
the condition was fully complied with, it was also substantially exercised. The Board further
finds that because the condition was fully complied with, no evaluation of fault is required.
Condition 33
The Board finds that condition 33 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 33 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 34
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The Board finds that condition 34 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 34 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 35
The Board finds that condition 35 has not been substantially exercised nor has it been fully
complied with. The Board further finds that full compliance with condition 35 cannot occur until
there is a final, approved FMP for the project, and that contingency has not yet occurred. The
Board further finds that the failure to fully comply with this condition is not the applicant's fault
for that reason and for the reasons explained below under the heading "Cumulative Findings –
Failure to Fully Comply is Not the Fault of the Applicant."
Condition 36
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 37
In the first round decision, DR-11-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and LUBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer’s decision in
DR-11-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 38
Although the finding was not challenged in this appeal, the Board agrees with and adopts the
finding of the Hearings Officer in the Hearings Officer’s Decision that the applicant substantially
exercised but did not fully comply with condition 38 prior to November 18, 2011. The Board
further finds that full compliance with condition 38 cannot occur until there is a final, approved
FMP for the project, and that contingency has not yet occurred. The Board further finds that the
failure to fully comply with this condition is not the applicant's fault for that reason and for the
reasons explained below under the heading "Cumulative Findings – Failure to Fully Comply is
Not the Fault of the Applicant."
Cumulative Findings – Substantial Exercise
Page 19 of 20 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS, A-14-1,
DC Document No. 2014-431
As explained above with respect to each condition, the Board has found that 19 of the 42
conditions were fully exercised and, therefore also substantially exercised,1 and one additional
condition (38) was substantially but not fully exercised, before November 18, 2011. The Board
also finds that substantial exercise of each of the 23 remaining conditions required the
occurrence of a contingency that did not occur by November 18, 2011. The Board also finds,
however, that the applicant has substantially exercised 100% of the conditions of approval that
were relevant and necessary to initiation of the CMP, as set forth in the Hearings Officer's April
12, 2012 decision in DR-11-8. The Board finds that these facts, taken together, constitute
substantial exercise of the conditions of approval of the CMP as a whole.
Cumulative Findings – Failure to Fully Comply is Not the Fault of the Applicant
Under LUBA's January 8, 2013 interpretation of DCC 22.36.020(A)(3), applied by the Hearings
Officer in the Hearings Officer’s Decision in A-13-8, the CMP was not initiated unless a finding
is made that for any of the conditions of approval that were not fully complied with prior to
November 18, 2011, the applicant is not at fault. The Hearings Officer further interpreted
LUBA's decision to require that, when a condition of approval is subject to a contingency before
it can be fully exercised, and the contingency has not occurred, the applicant must not be at fault
for the failure of the contingency to occur.
As discussed above, the Board found that 19 of the conditions were fully complied with by the
November 18, 2011 deadline. As to the remaining 23 conditions,2 the Board considered the
evidence as to the applicant's fault (or lack thereof) in failing to achieve full compliance prior to
November 18, 2011. Based on the evidence in the record, the Board finds that in all 23
instances, the failure to fully comply with the condition prior to November 18, 2011 (including
the failure to cause any contingency to full compliance to occur) is not the fault of the applicant
because of the three-step process for approving destination resorts in Deschutes County as
further elaborated below.
Therefore, the failure to fully comply with the conditions was not the fault of the applicant and
initiation has occurred in compliance with DCC 22.36.020(A)(3).
Three-Step Destination Resort Approval Process. The Board finds as follows. The two-year
expiration of land use approvals under DCC 22.36.010.B.1 must be applied to a destination
resort CMP in a manner consistent with the three-step approval process for destination resorts
created under DCC Chapter 18.113. The three-step process was consciously created by the
Board to provide a mechanism for meaningful review and oversight of very complex
development projects, and in doing so the Board never intended that the general two-year
expiration of land use permits under DCC 22.36.010.B.1 would require full compliance with all
conditions of a CMP within two years of approval of the CMP (tolled only for appeals of the
CMP). To find otherwise would effectively dismantle the three-step approval process of DCC
Chapter 18.113 and make meaningful review and oversight of destination resorts impossible. It
would also negate the express power of the Board under DCC 18.113.050.B.8 to approve multi-
year phasing plans for destination resorts that exceed two years, such as the phasing plan
1 Conditions 1, 3, 8, 9, 10, 11, 13, 14A, 14B, 14E, 15, 19, 22, 23, 24, 30, 32, 36 and 37.
2 Conditions 2, 4, 5, 6, 7, 12, 14C, 14D, 16, 17, 18, 20, 21, 25, 26, 27, 28, 29, 31, 33, 34, 35 and 38.
Page 20 of 20 - DECISION OF THE BOARD OF COUNTY COMMISSIONERS, A-14-1,
DC Document No. 2014-431
approved for the Thornburgh Resort. Accordingly, the applicant is not at fault for failing to
achieve something (full compliance with all CMP conditions within two years) that: (a) was
never intended by the Board; (b) would require the applicant to violate the approved phasing
plan in the CMP; and (c) would be practically impossible to achieve for a complex project such
as the Thornburgh Resort under the three-step approval process created by DCC Chapter 18.113.
V. DECISION:
Based on the findings of fact, interpretations and conclusions of law set out above, the Board
holdsconcludes that the Thornburgh Resort CMP was initiated prior to November 18, 2011, and
therefore has not expired pursuant to DCC 22.36.010.B.1.
DATED this ____ day of August, 2014.
MAILED this ____ day of August, 2014.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
______________________________________
TAMMY BANEY, CHAIR
______________________________________
ANTHONY DEBONE, VICE CHAIR
ATTEST:
______________________________________
Recording Secretary
______________________________________
ALAN UNGER, COMMISSIONER
THIS DECISION BECOMES FINAL UPON MAILING. PARTIES MAY APPEAL THIS
DECISION TO THE LAND USE BOARD OF APPEALS WITHIN 21 DAYS OF THE DATE
ON WHICH THIS DECISION IS FINAL.
IF " DOCVARIABLE "SWDocIDLocation" 4" = "4" "037117/00001/5695659v3" "" 037117/00001/5695659v3
Board of Commissioners’ Business Meeting Agenda Wednesday, August 13, 2014
Page 1 of 8
Deschutes County Board of Commissioners
1300 NW Wall St., Bend, OR 97701-1960
(541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org
BUSINESS MEETING AGENDA
DESCHUTES COUNTY BOARD OF COMMISSIONERS
10:00 A.M., WEDNESDAY, AUGUST 13, 2014
_____________________________
Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend
__________________________
1. PLEDGE OF ALLEGIANCE
2. CITIZEN INPUT
This is the time provided for individuals wishing to address the Board, at the Board's
discretion, regarding issues that are not already on the agenda. Please complete a sign-up
card (provided), and give the card to the Recording Secretary. Use the microphone and
clearly state your name when the Board calls on you to speak.
PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public
hearing will NOT be included in the official record of that hearing.
3. A PUBLIC HEARING and Consideration of First Reading by Title Only of
Ordinance No. 2014-021, a Sunriver Plan Amendment from Forest District to
Utility District – Cynthia Smidt, Community Development
Suggested Actions: Open hearing, take testimony, close hearing if appropriate,
and conduct first reading by title only of Ordinance No. 2014-021.
4. A PUBLIC HEARING and Consideration of First Reading by Title Only of
Ordinance No. 2014- 022 , a Sunriver Zone Change from Forest District to
Utility District – Cynthia Smidt, Community Development
Suggested Actions: Open hearing, take testimony, close hearing if appropriate,
and conduct first reading by title only of Ordinance No. 2014-022.
Board of Commissioners’ Business Meeting Agenda Wednesday, August 13, 2014
Page 2 of 8
5. A PUBLIC HEARING and Consideration of First and Second Readings, by
Title Only, and Adoption of Ordinance No. 2014-105, Creating a Code Section
that Designates County Job Classifications that are Authorized to Issue Code
Enforcement Citations – David Doyle and John Laherty, County Counsel; Nick
Lelack, Community Development
Suggested Actions: Open hearing, take testimony, close hearing if appropriate;
conduct first and second readings by title only; move adoption of Ordinance
No. 2014-105.
6. CONSIDERATION of Board Signature of Document No. 2014-433, an
Intergovernmental Agreement with the Oregon Department of Corrections
regarding Parole & Probation Funding for FY 2014-15 – Ken Hales,
Community Corrections
Suggested Action: Move approval of Document No. 2014-433.
7. CONSIDERATION of Board Signature of Document No. 2014-440, The
Deschutes County Community Corrections Plan for FY 2014-15 – Ken Hales,
Community Corrections
Suggested Action: Move approval of Document No. 2014 -440.
8. DELIBERATIONS and a Decision on an Appeal regarding Leading Edge
Aviation Fuel Station – Will Groves, Community Development Department
Suggested Actions: Deliberate towards a Board decision; provide instruction
to staff to prepare findings and decision.
9. CONSIDERATION of Board Signature of Document No. 2014-431, a
Decision regarding Thornburgh (Loyal Land, LLC) – Kevin Harrison/Nick
Lelack, Community Development Department
Suggested Actions: Move approval of Board decision, Document No. 2014-
431.
Board of Commissioners’ Business Meeting Agenda Wednesday, August 13, 2014
Page 3 of 8
CONSENT AGENDA
10. Board Signature of Document No. 2014-401, Option Agreement with Cascade
Divide Data Center for Property in Finley Butte Industrial Park, La Pine
11. Board Signature of Document No. 2014-409, Amending a Lease with the State
of Oregon Building Codes Division for County Space
12. Board Signature of Letters Appointing Mike Shirtcliff, Lorie Weber, Charla
DeHate and Susan Keys to the Deschutes County Public Health Advisory
Board, through August 31, 2017
13. Approval of Minutes:
Business Meetings of August 4 and 6, 2014
Work Session of August 6, 2014
CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-H
COUNTY SERVICE DISTRICT
14. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the Extension/4-H County Service District
CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY
SERVICE DISTRICT
15. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
the 9-1-1 County Service District
RECONVENED AS THE DESCHUTES COUNTY BOARD OF
COMMISSIONERS
16. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for
Deschutes County
17. ADDITIONS TO THE AGENDA
Board of Commissioners’ Business Meeting Agenda Wednesday, August 13, 2014
Page 4 of 8
_________ ______________________________________
Deschutes County encourages persons with disabilities to participate in all programs and activities. This
event/location is accessible to people with disabilities. If you need accommodations to make participation
possible, please call (541) 388-6572, or send an e-mail to bonnie.baker@deschutes.org.
_________ ______________________________________
PLEASE NOTE: At any time during this meeting, an executive session could be called to address issues
relating to ORS 192.660(2) (e), real property negotiations; ORS 192.660(2) (h), litigation; ORS
192.660(2)(d), labor negotiations; ORS 192.660(2) (b), personnel issues; or other executive session items.
______________________________________
FUTURE MEETINGS:
(Please note: Meeting dates and times are subject to change. All meetings take place in the Board of
Commissioners’ meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions
regarding a meeting, please call 388-6572.)
Tuesday, August 12
9:00 a.m. Performance Management & Department Update – Natural Resources Protection –
Road Department
Wednesday, August 13
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Wednesday, August 20
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Monday, August 25
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, August 26
11:00 a.m. Performance Management & Department Update – District Attorney
1:00 a.m. Employee Benefits Advisory Committee Meeting
Board of Commissioners’ Business Meeting Agenda Wednesday, August 13, 2014
Page 5 of 8
Wednesday, August 27
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Thursday, August 28
9:00 a.m. Performance Management & Department Update – Sheriff’s Office, Part I
Monday, September 1
Most County offices will be closed to observe Labor Day
Tuesday, September 2
3:30 p.m. Local Public Safety Coordinating Council Meeting
5:00 p.m. County College Presentation
Wednesday, September 3
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Thursday, September 4
9:00 a.m. Performance Management & Department Update – Sheriff’s Office, Part II
Tuesday, September 9
6:30 p.m. Regular Joint Meeting with the City of Redmond Council – Redmond City Hall
Wednesday, September 10
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Thursday, September 11
12 noon Audit Committee Meeting
Board of Commissioners’ Business Meeting Agenda Wednesday, August 13, 2014
Page 6 of 8
Monday, September 15
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, September 16
12 noon Boys & Girls Club Luncheon Event – St. Charles Medical Center
Friday, September 19
8:00 a.m. State of the County Presentation – La Pine & Sunriver – location pending
Monday, September 22
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Wednesday, September 24
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Thursday, September 25
9:00 a.m. Performance Management & Department Update – Risk, Veterans Services and Law
Library
5:30 p.m. Joint Meeting with the Planning Commission – Continuation of Discussion regarding
Agricultural Lands
Monday, September 29
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Wednesday, October 1
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Board of Commissioners’ Business Meeting Agenda Wednesday, August 13, 2014
Page 7 of 8
Thursday, October 2
8:00 a.m. Regular Joint Meeting with the Sisters City Council – Sisters City Hall
Monday, October 6
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, October 7
9:00 a.m. Performance Management & Department Update – 9-1-1 County Service District
3:30 p.m. Local Public Safety Coordinating Council Meeting
Wednesday, October 8
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Monday, October 20
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Wednesday, October 22
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Monday, October 27
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Wednesday, October 29
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Board of Commissioners’ Business Meeting Agenda Wednesday, August 13, 2014
Page 8 of 8
Monday, November 3
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Tuesday, November 4
3:30 p.m. Local Public Safety Coordinating Council Meeting
5:00 p.m. County College – Graduation; Election Night
Wednesday, November 5
10:00 a.m. Board of Commissioners’ Business Meeting
1:30 p.m. Administrative Work Session – could include executive session(s)
Thursday, November 6
11:00 a.m. Tri-County Commissioner Meeting – Redmond (location pending)