HomeMy WebLinkAboutDoc 431 - Thornburgh DecisionDeschutes County Board of Commissioners
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of August 13,2014
DATE: August 6,2014
FROM: Kevin Harrison, Principal Planner CDD 385-1401
TITLE OF AGENDA ITEM:
Deliberation and possible adoption of written decision on application A -14-1 on the question of
whether the Conceptual Master Plan ("CMP") approval for Thornburgh Destination Resort has been
initiated.
PUBLIC HEARING ON THIS DATE? No.
BACKGROUND AND POLICY IMPLICATIONS:
On April 12,2012, the Hearings Officer issued a declaratory ruling that the CMP approval for the
Thornburgh Destination Resort had not expired because it had been initiated. Opponents appealed that
decision to the Land Use Board of Appeals ("LUBA") and, on January 8, 2013, LUBA remanded the
decision for further proceedings (LUBA No. 2012-042).
On December 23,2013, the applicant (Loyal Land, LLC) submitted an application to initiate the
remand proceedings (A-13-8). The Hearings Officer issued her decision on March 18, 2014, finding
that the CMP had not been initiated. The applicant filed an appeal (A-14-1) to the Board of County
Commissioners ("Board") on March 31, 2014, within the 12-day appeal period.
At their Business Meeting of April 9, 2014, the Board agreed to hear the appeal and adopted Order No.
2014-010, deciding to the hear the appeal de novo on the issue of compliance with DCC
22.36.020(A)(3) only. A public hearing was held on June 4,2014; the oral record was closed on that
date, with the written record open until June 25,2014. The Board deliberated on July 2 and 7, 2014,
issuing an oral decision for approval on July 7, 2014.
By letters dated March 21, 2014, May 5,2014 and July 17,2014, the applicant has agreed to extend the
time period for completing the remand proceedings to August 20, 2014, pursuant to ORS
215.435(2)(b).
FISCAL IMPLICATIONS:
None.
RECOMMENDATION & ACTION REQUESTED:
Deliberate and possible adoption of Document No. 2014-431.
ATTENDANCE: Kevin Harrison, CDD
DISTRIBUTION OF DOCUMENTS:
CDD; Legal Counsel
REVIEWED
LE ~k:LCOUNSEL
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-II-8)
APPLICANTIAPPELLANT: 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
I by the Thornburgh Resort CMP has been initiated under Deschutes County Code ("DCC")
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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 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). I
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II. APPLICABLE CRITERIA:
The following standards and criteria from the DCC are applicable to this appeal:
• Chapter 22.32 -Appeals
I 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.
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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 1 Loyal's appeal de novo on the issue of whether or not the CMP was initiated pursuant to
DCC 22.36.020(A)(3).
I 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
\j and opponent. At the hearing, the written record was held open through June 25, 2014
J for additional argument and evidence from Loyal and opponent. Loyal submitted final i
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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 held that the CMP had been initiated pursuant to DCC
22.36.020(A)(3). The Board directed Staff to prepare this written 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 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 22.32.01 0.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.
If a decision has been modified on reconsideration, an appeal must be filed no later
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DC Document No. 2014-431
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.
e. 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.
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e. 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
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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 ISO-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
ofthe 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 ISO-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
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22.32.027.BA 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.
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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
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, did 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.
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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.
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 ONAPPROVALS
22.36.010. Expiration of Approval.
B. Duration of Approvals
1. Except as otherwise provided under Dee 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 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 Dee 22.36.020, development action undertaken under a land use
approval described in Dee 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 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
holds 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 Dee
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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
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 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 18.1 13.040.B.
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 the
Board's interpretation ofDCC 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" ofthe 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 Dee 22.36.020(A)(3)
The Board finds that DCC 22.36.020(A)(3) has three determinations 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 as follows:
Construction is Not Required
As noted above, the Board finds that this particular CMP, standing alone, does not authorize or
require construction. Rather, any construction of a destination resort on land subject to this 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 this CMP.
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Substantial Exercise / Failure to Fully Comply is Not the Fault ofthe Applicant
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-1l-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-I 1-8 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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DC Document No. 2014-431 I
i
explained below under the heading "Cumulative Findings -Failure to Fully Comply is Not the
Fault of the Applicant.1I
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-II-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-Il-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-I 1-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
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Condition 10
In the first round decision, DR-1l-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-l3-8, stands.
Condition 11
In the first round decision, DR-II-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-l 1-8 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 ofthe 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-1l-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-1l-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-l3-8, stands.
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\
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
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-1l-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-II-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. II
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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
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-1l-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-I 1-8 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."
I
l
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DC Document No. 2014-431
Condition 22
In the first round decision, DR-II-S, 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-II-S regarding this condition, as reiterated in her decision in A-13-S, stands.
Condition 23
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 IS, 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-ll-S, 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-ll-S regarding this condition, as reiterated in her decision in A-13-S, 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
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DC Document No. 2014-431
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
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.1I
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-1l-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-II-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.
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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
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-1l-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-l 1-8 regarding this condition, as reiterated in her decision in A-13-8, stands.
Condition 37
In the first round decision, DR-II-8, the Hearings Officer found this condition was fully
complied with by the applicable expiration deadline and L UBA upheld that finding. Therefore,
this condition was not subject to review by the Board. Thus, the Hearings Officer's decision in
DR-l 1-8 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
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DC Document No. 2014-431
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
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,l 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 22 remaining conditions required the
occurrence of a contingency that did not occur by November IS, 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-ll-S. 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 S, 2013 interpretation of DCC 22.36.020(A)(3), applied by the Hearings
Officer in the Hearings Officer's Decision in A-13-S, 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 IS, 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 22.36.01 O.B.l 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 IS. 113. The three-step process was consciously created by the
I 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, 18,20,2I,25,26,27,28,29,31,33,34,35and38.
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DC Document No. 2014-431
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.l13 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
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
holds 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
OFDESCHUTESCOL~TY,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.
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