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HomeMy WebLinkAboutDest Resort Remap UpdateCommunity Development Department Planning Division Building Safety Division Environmental Health Division 117 NW Lafayette Avenue Bend Oregon 97701-1925 (541)388-6575 FAX (541)385-1764 http://www.co.deschutes.or. us/cdd/ MEMORANDUM TO: Deschutes County Board of Commissioners FROM: Peter Gutowsky, Principal Planner DATE: August 30, 2010 SUBJECT: Destination Resort Remapping Staff has scheduled a morning work session with the Board of County Commissioners on September 1 to discuss Central Oregon Land Watch's Notice of Intent to Appeal Ordinances 2010-024 and 025. These recently adopted ordinances pertain to Deschutes County's destination resort remapping criteria and procedures. Attached is letter written by Liz Fancher, an attorney representing Belveron Real Estate Partners, LLC. Her client plans to file an application requesting that its property on Vandevert Road be included on the County's destination resort map. Ms. Fancher empahsizes that state law provides that appealed ordinances are legally effective while under appeal.' She also points out that if one or both of the ordinances is remanded by the Land Use Board of Appeals (LUBA), the County can make needed changes and review the submitted applications under its amended ordinances. The "law in effect" / "fixed goal posts" rule would not apply to destination resort remapping and rezoning requests in this scenario because they require a comprehensive plan amendment. Staff concurs. Ordinances 2010-024 and 025 remain in effect unless LUBA issues a stay. Staff therefore will process map amendment applications that are received by September 7, at 5:00 p.m. The first evidentiary hearing with the Deschutes County Planning Commission is scheduled for November 18. Additionally, a tax bill insert will be mailed to all property owners that are disqualified based on the new eligibility criteria (Ordinance 2010-024) to satisfy Ballot Measure 56 requirements. 1 ORS 197.625(3)(a). Quality Services Performed with Pride LIZ FANCHER, 4Tr0RNEY Liz Fancher Sue Stinson, Paralegal August 30, 2010 BOARD OF COMMISSIONERS DESCHUTES COUNTY 1300 NW WALL STREET, SUITE 200 BEND, OR 97701-1960 Re: Destination Resort Remapping I am writing to you on behalf of Belveron Real Estate Partners, LLC regarding the recent appeal of the County's destination resort mapping ordinances, Ordinances 2010-024 and 2010-025. Belveron plans to file an application requesting that its property on Vandevert Road be included on the County's destination resort map. It is my understanding that you will be considering whether to accept applications to add land to the destination resort map as allowed by the appealed ordinances. Belveron asks that you accept and review applications to add property to the map. Belveron is confident that the County's ordinance, as it applies to its property and other lots that might be added to the map, complies with State law and should be upheld on appeal. As a result, Belveron is willing to pay filing fees and file its application this year before the appeal is resolved. State law provides that appealed ordinances are legally effective while under appeal. ORS 197.625(3)(a).' This means that the deadline prescribed by Ordinance No. 2010-002 is the deadline stated in the ordinance — "the first Tuesday in September by 5:00 pm." This is September 7, 2010. Since the application date is fixed by Ordinance No. 2010-002, it is the official and controlling deadline unless and until the ordinance is amended. At this time, there is insufficient time for the County to amend Ordinance No. 2010-002 to change the filing date. Notice and hearing requirements for text amendments make it impossible to adopt an amending ordinance prior to the September 7, 2010 deadline. Given this fact, Belveron asks that you allow property owners to file applications using the dates set in the adopted ordinances. If one or both of the ordinances is remanded by I The ordinance is effective now because it was adopted with an emergency clause that made it effective upon adoption. The ordinance is effective unless LUBA grants a stay. No stay has been granted. Stays are rare because the legal requirements for obtaining a stay are very difficult to meet. 644 NW BROADWAY STREET • BEND, OREGON • 97701 PHONE: 541-385-3067 • FAX: 541-385-3076 — 2 — August 30, 2010 LUBA, the County can make needed changes and review the submitted applications under the amended ordinances.2 The County may also accept applications from property owners who wish their property to remain on the map. The notice to these property owners can advise them that the ordinances have been appealed and that the rules that will apply to the review of the applications may change during the course of the review. Thank you for your consideration of these legal issues and our request. Liz Fancher Attorney at Law LF/ss cc: P. Gutowsky S. Hultberg L. Craghead N. Lelack 2 The law can be amended and applied to pending applications as the "law in effect"/"fixed goalposts" rule would not apply to destination resort mapping and rezoning requests as they require amendment of the comprehensive plan. Any application that requires a comprehensive plan amendment is not subject to the fixed goalpost rule. ORS 215.427(3)(a). Edney v. Columbia County Board of Commissioners, 318 Or 138, 143-44, 863 P2d 1259 (1993). See also, Columbia Riverkeeper v. Clatsop County, 58 Or LUBA 190 (2009); Friends of the Applegate Watershed v. Josephine County, 44 Or LUBA 786 (2003).